As workplaces around the country implement employee vaccination policies in response to the pandemic, the obvious question arises of what can be done to enforce them. A well-crafted policy will include provisions on what discipline may apply to employees who fail to comply. However, the existence of a policy statement regarding treatment of non-compliant employees does not, in and of itself, justify all disciplinary measures carried out thereunder.
Employers faced with employees who refuse to be vaccinated are left with the unenviable task of deciding whether termination for cause is justified under the circumstances. Before terminating an employee for refusing to follow a vaccine policy, employers should consider:
- whether the employee has a valid reason to refuse vaccination; and
- is termination justified under the circumstances?
Is the employee's refusal reasonable?
Employees may have a valid human rights reason for refusing to be vaccinated. A commonly requested exemption is for medical reasons, such as an allergy or underlying medical condition that makes COVID-19 vaccination problematic. Where a valid human rights reason for refusal to be vaccinated exists, employers generally have a duty to provide reasonable accommodation. This may include allowing an employee to work remotely or allowing an employee to provide proof of a negative test and to maintain social distancing.
However, the duty to accommodate is not unlimited. In circumstances where an employee with a valid human rights exemption cannot be reasonably accommodated without constituting an undue hardship (which is a high bar for an employer to prove), then an employer may wish to consider whether the employment contract is frustrated, or whether other temporary measures for the duration of the pandemic are feasible, such as layoff or unpaid leave. Termination would be a last resort when no other options are reasonably workable.
It is important to note that an employee's personal preference is not included among the recognized human rights grounds for refusing vaccination. This was recently confirmed by the Ontario Human Rights Commission in a policy statement declaring that "...the OHRC's position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code." We expect other human rights commissioners across the country will follow suit.
Is termination justified?
In order to justify termination, employers must show that an employee's conduct is not only sufficiently egregious and not condoned, but that it was wilful. Refusal to follow a vaccination policy may amount to wilful misconduct depending on the reasonableness of the policy and the circumstances of the workplace.
For example, it may be reasonable to terminate an employee for refusing to be vaccinated when that employee works in close proximity with other employees and the public, or is engaged in handling food or other sanitary products delivered to the public. On the other hand, it is likely not reasonable to terminate an individual for refusing to be vaccinated when that individual works remotely at home and has no contact with coworkers or the public, regardless of what the employer's policy states.
There have not been any cases decided yet on whether an employee's failure to follow a vaccine policy arising from the pandemic is just cause for termination. Previous case law involving influenza vaccinations is conflicting. For example, in an Ontario case from 2000 (Barkley v. Mohawk Council, 2000 CarswellNat 3877), an arbitrator upheld the termination of a care home nurse for refusing to comply with her employer's mandatory influenza immunization policy. Her refusal was based on her assertion that she had never had the flu and trusted her immune system. Although the case was decided under the Canada Labour Code and in a care home context, it demonstrates the decision maker's emphasis on public health over personal preference. This emphasis may be even more pronounced during the pandemic.
On the other hand, in St. Peter's Health System v. C.U.P.E., Local 778, 2002 CarswellOnt 4709, a policy requiring all employees of a chronic care geriatric facility in a public hospital to be vaccinated against influenza during flu season, regardless of whether they had any symptoms, was struck down after numerous employees were suspended following a flu outbreak in the facility.
As a result, it is impossible to predict with certainty how the courts will deal with an employee's failure to follow a COVID vaccine policy in the light of the pandemic. Each case will have to be assessed on its own facts to determine whether cause for termination exists.
Although termination for cause for refusing to be vaccinated may be justified under the right circumstances, labour and employment law favours progressive discipline where possible. An employer faced with an employee who refuses to follow a vaccination policy may consider placing that employee on unpaid leave for a reasonable period to allow the employee to be vaccinated, failing which, the employer may escalate the discipline to termination. Alternatively, an employee who refuses to comply with an employer's reasonable vaccination policy and as a consequence is prohibited from attending the workplace, and is unable to work remotely, may be considered to have effectively resigned from their employment. In essence, the employee is choosing not to comply with the policy and not to show up for work. It is similar to an employee declining to show up for work at the employer's designated work start time; they will be deemed to have abandoned their employment.
Provided there is no human rights accommodation requirement, an employer may also consider terminating an employee on a without cause basis by providing pay in lieu of notice and any applicable severance depending on their seniority, the length of their employment, the terms of their employment contract, and a range of other factors applicable in dismissal without cause circumstances.
The question of whether termination for cause is justified is always context driven. Employers should seek legal advice to help them determine their available options and to help identify their potential risks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.