We are getting lots of questions from employers and employees about vaccination. We addressed many of these questions a few weeks ago in our post Unvaccinated Employees and Mandatory Vaccination. Now that a little bit of time has passed, we are getting more questions about the possible job consequences for employees who are unvaccinated.
Why is the Employee not Vaccinated?
Before considering what job consequences might be appropriate, it’s crucial for employers to understand the employee’s reasons for being unvaccinated. In rare circumstances, an employee may be entitled to a legitimate exemption from a mandatory vaccination policy. Employees who have legitimate exemptions based on medical or religious grounds will be entitled to protection from discrimination by human rights legislation. While it still may not be appropriate to allow an unvaccinated employee with a legitimate reason for an exemption from attending in person at the office, they will be entitled to accommodation. The range of accommodations is wide, from placing an employee on an unpaid leave of absence to allowing them to continue their work remotely. For more information on legitimate reasons for exemptions and accommodation, see our past post.
Notably, last week, the Ontario Human Rights Commission published a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates. In this policy, they stated that an individual who chooses not to be vaccinated on personal preference is not entitled to the protections of the Human Rights Code (“the Code”).
The Employee is Not Entitled to a Legitimate Exemption, Now What?
If an employee has not demonstrated entitlement to a human rights-based exemption from a mandatory vaccination policy, they can legally be “discriminated” against. Employees can almost always be terminated without cause, and upon provision of notice, for almost any reason at any time. The exception to this rule is when an employee is entitled to human rights protections. In these circumstances, the reason for their termination can have nothing to do with their entitlement to accommodations, or their termination will be discriminatory and contrary to the Code. Another exception is unionized employees, who typically can only be terminated for cause.
An employer could terminate an employee who refuses to be vaccinated for reasons unrelated to their religious beliefs or medical needs. The question then becomes, is that employee entitled to notice or can they be terminated for cause.
With or Without Cause?
Cause for termination is typically a high bar. Whether or not failing to be vaccinated will amount to cause will depend on the employee’s job and the circumstances. The employee’s failure to follow the mandatory vaccination policy is just like the employee failing to follow any other health and safety workplace rule. The employee could be found to be insubordinate for not following the rule. Whether this insubordination will amount to cause will depend on how reasonable the rule is in the context of the specific workplace. In workplaces where employees are working with vulnerable populations, the rule may be very reasonable and integral to the safety of that workplace. An employee’s failure to follow a rule in these circumstances may indeed be cause for termination. Alternatively, in an office type workplace where the employee could continue to work remotely, it may not be as reasonable. The employee may still be disciplined, but the situation may not rise to the level of cause for termination. While we have not heard from the courts yet on these types of cases, no doubt we will.