By Jordan Reiner, Partner – Lecker & Associates
When it comes to the COVID-19 vaccination, some employers are mandating that their employees be vaccinated before returning to the office. If you as an employee find yourself in a similar situation, you may be asking yourself, “can my employer force me to be vaccinated,” “what are my rights and entitlements.” Here are some commonly asked questions we have received from employees in Ontario.
Q: Can My Employer Force Me to Get Vaccinated?
A: 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.
Because vaccination is currently not a legal requirement in Ontario, should an employer choose 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.
Q: Can My Employer Fire Me for Not Getting the COIVD-19 Vaccine?
A: If an employer implements a mandatory vaccination policy, but the employee chooses not to be vaccinated and the reasons for not receiving being vaccinated are not protected under the Ontario Human Rights Code, then an employer may terminate the employee’s employment on a without cause. 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 severance pay.
Q: What Reasons for Being Unvaccinated May Be Covered Under the Ontario Human Rights Code?
A: 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.
Simply not wanting the vaccine because it is new and the long-term effects are not known, is not a protected ground under the Ontario Human Rights Code.
Q: Can My Employer Ask for Proof of Vaccination?
A: It really depends on the reason why the employer is asking for proof of vaccination since such an inquiry begins to encroach on an employee’s private medical information. Often it is not whether an employer can or cannot ask about proof of vaccination but whether it is reasonable to do so.
Q: Am I required to Respond to a Request for Proof of Vaccination by my Employer?
A: It is important that an employee not lie about their vaccination status. Lying about being vaccinated and deliberately exposing co-workers and their families to a potentially deadly disease may be just cause for termination. If an employee does not feel comfortable in responding to a request for proof of vaccination, it is best to be upfront and honest. With that said, violating a vaccination policy could lead to a situation where the employer may terminate the employee and owe that employee severance.
Q: If I choose not to be Vaccinated, can my employer require me to Work from Home
A: Each case is different but permitting or requiring an unvaccinated employee to work from home where possible may constitute a balance of health and safety rights against the employee and/or human rights. If an employee cannot be vaccinated for medical or religious reasons, an employer may strongly consider requiring that employee to work from home in order to protect its workforce from an infectious and potentially deadly disease.
It is important to remember, however, that unless an accommodation is being requested under the Ontario Human Rights Code, there is no legal requirement for employers to accommodate employees who refuse to be vaccinated by offering separate workspaces or work-from-home options.