Can Employers Require Employees to Be Vaccinated In Ontario?achkarlaw-admin
With governments now working towards securing vaccines for COVID-19, it is expected these vaccines will start becoming available to the public in the near future. With COVID-19 vaccines, Ontario and Federal employers will see an opportunity to re-open or prepare to re-open their businesses, and bring employees back to work. The question to ask is, can employers require employees to be vaccinated in order to return to work? Employees and employers should be aware of the legal implications COVID-19 vaccines create with regard to the employment relationship.
Can an Employee be Fired for Refusing a COVID-19 Vaccine in Ontario?
In Ontario, employers have an obligation to provide a safe work environment under the Occupational Health and Safety Act. While an employer generally can’t enforce a requirement for employees to get vaccinated, failure for non-unionized employees to do so could lead to a termination without cause. This is because an employee’s employment can be terminated without cause for any reason so long as it’s not discriminatory. To that end, employees could refuse a vaccine on the basis of grounds covered by the Ontario Human Rights Code or Canadian Human Rights Act such as religion or disability and not face the dismissal of employment for the refusal. If there is no such reasoning, however, this option could be on the table for the employer.
Additionally, just cause is very difficult to prove at court and it is unlikely that a just cause termination of employment for refusal to get a COVID-19 vaccine would hold up. Employers may not want to take such a risk given the potential to become liable for significant wrongful dismissal damages if just cause is alleged and not proven at court. Considering the possibility of a without cause dismissal being fairly expensive for older, longer serviced employees, employers may opt not to go with this option.
Other Options to Encourage Vaccination at the Workplace
Beyond the threat of employment termination, employers may try to offer incentives to employees to encourage vaccination. However, employers will have to be careful not to give the appearance of favourable treatment to employees who are vaccinated, or they could become liable for an application to the Human Rights Tribunal of Ontario for discrimination. An employer would also have to be careful not to accidently cause a constructive dismissal by unilaterally worsening the terms of employment for employees who do not obtain a vaccine. Reducing pay, benefits, or removing essential duties of a position could be very risky to the employer and could open up liability for constructive dismissal damages.
Considering the risks and the unprecedented territory COVID-19 vaccine requirements find themselves in, employers should consult with an employment lawyer before implementing any requirements or incentives.
If you an employer and want to know more about how best to keep your workplace safe, or an employee wanting to know more about your workplace rights regarding a COVID-19 vaccine, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.