A growing number of businesses in Ontario have begun implementing COVID-19 vaccine mandates for their employees. Some businesses are taking an all-or-nothing approach whereby if an employee refuses to comply with a mandatory vaccination policy, they will be fired. Other businesses are offering an alternative whereby an employee who refuses to be vaccinated, must submit to mandatory testing every week and in some cases, multiple times per week. The question employers and employees alike are asking is, is this legal?
Is Mandatory Vaccination Legal?
A vaccination policy must strike a balance between employee’s rights, the law and the health and safety of other employees in the workplace.
If an employee works in a specialized occupation where they are required to be around vulnerable and/or immunocompromised individuals, a policy requiring vaccination may be legal.
For those individuals who do not work in a specialized occupation mentioned above, a policy requiring vaccination can likely not be introduced as a term of employment in Ontario.
Though an employer cannot physically force an employee to be vaccinated, an employer must still take into consideration the health and safety of others in the workplace. An employer’s obligation under the Occupational Health and Safety Act and other public health legislation may require the employer to take reasonable steps to protect the health and safety of the workforce by requiring the employees to use personal protective equipment and in some cases vaccination. What constitutes “reasonable steps” in each circumstance will largely be considered depending on each workplace.
Employers have an obligation to maintain a safe workplace and may be within their rights to develop a vaccination policy that strongly encourages vaccination.
HOWEVER, because vaccination is currently not a legal requirement in Ontario, should an employer chooses to mandate vaccines in the workplace, it is likely that in most circumstances, failure to comply with such a policy may lead to employment being terminated on a without cause basis.
If I refuse to Comply with a Mandatory Vaccination Policy, Can I Be Fired?
If an employer implements a mandatory vaccination policy but the employee chooses not to comply, an employer may terminate the employee’s employment on a without cause basis if an employee chooses not to be vaccinated, as long the reasons for not receiving being vaccinated are not protected under the Ontario Human Rights Code. In most cases where an employee’s reasons for not being vaccinated are not protected by the Ontario Human Rights Code, an employer must still provide an employee with wrongful dismissal compensation based on age, length of service and the type of position.
What Reasons for Being Unvaccinated May Be Covered Under the Ontario Human Rights Code?
The Ontario Human Rights Code provides an enumerated list of protected grounds for which an employer may not discriminate against an employee. If an employee chooses not to be vaccinated for bona fide medical or religious reasons, for example, an employee may have a claim against the employer for breach of their human rights.
With respect to medical exemptions, the Ontario government has issued some guidance on what will constitute a medical exemption under the Ontario Human Rights Code. A medical exemption will be legally recognized if the employee has a known allergy to one of the ingredients in the vaccine or an allergic reaction to the vaccine after receiving the first dose. Additionally, a medical exemption will apply if the employee suffered from myocarditis or pericarditis after receiving the first dose of the vaccine.
Simply not wanting the vaccine because it is new and the long-term effects are not known or for any other reason that does not pertain to religious or medical reasons, is not a protected ground under the Ontario Human Rights Code.
Is Mandatory Vaccination a Breach of my Rights Pursuant to the Charter of Rights and Freedoms?
A commonly referenced argument against vaccine mandates is that they violate the Charter of Rights and Freedoms or more specifically, Section 7 of the Charter which reads:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
It is important to keep in mind that the Charter only applies to government action as opposed to policies and rules imposed by private businesses. Those who are employed by any level of government may be able to challenge a mandatory vaccination policy under Section 7 of the Charter. However, it is likely that if an employee were to establish a violation of Section 7, it may be upheld under Section 1o f the Charter which says that all rights and freedoms in the Charter are subject to reasonable limits as can be demonstrably justified in a free and democratic society.
In other words, the policy must be a proportional and reasonable approach only in that governments can limit a right if they have a very good reason and can demonstrate the need for the limit. While nothing is certain law, it is reasonable to expect that a global pandemic may constitute a justifiable reason for a mandatory vaccination policy.
If I Refuse to Comply with a Mandatory Vaccination Policy, Can my Employer Legally Require Mandatory COVID-19 Testing?
According to the Occupational Health and Safety Act, employers have the duty to “take every precaution reasonable in the circumstances for the protection of a worker”. In many workplaces, requiring workers to get tested may be a very reasonable precaution to protect workers. For employees who are employed by a private business, failure to comply with a mandatory testing policy will likely yield the same result as a failure to comply with a mandatory vaccination policy in that an employer may terminate the employee’s employment on a without cause basis with very few exceptions. Since an employer is introducing a new term into the employment contract, it is likely that if an employer chooses to terminate an employee for failing to comply with a mandatory testing policy, the employer will have to provide the employee with severance or the termination may be wrongful.
Can My Employer Enforce a Mask Mandate in the Workplace?
The Ontario Government currently mandates the use of masks/face coverings in the indoor premises of all businesses and organizations (including a business vehicle), as well as in certain outdoor situations, with some exceptions.
Being fully vaccinated does not exempt an individual from mask requirements.
Current regulations require employees to wear a mask or face covering when they are working in an indoor area (including a business vehicle) unless they are exempt. Masks are not required for staff working in an area that is not accessible to the public and where a physical distance of 2 metres from every other person can be maintained at all times, regardless of the presence of plexiglass or other barriers. Failure to comply with a reasonably implemented Mask “ Mandate “ in the work environment may lead to a warning for insubordination, and then termination WITH JUST CAUSE – therefore no compensation.