By now, many employers are either being legally required to, or choosing to, implement a mandatory COVID-19 vaccination policy for their workplaces. Yet, there is a significant segment of the workforce who remains vaccine resistant. This raises the question of what employers can do in response to workers who refuse to vaccinate – specifically, whether they can terminate them for just cause. While there is yet to be a court or arbitration decision answering this question conclusively, recent developments in the law and public policy suggest that, in certain circumstances, the answer could be “yes”.
At the outset, it is important to note that there are certain situations where an employee could be exempt from following an employer’s mandatory vaccination policy. Specifically, if an employee refuses to vaccinate for reasons related to their religion or disability, the Ontario Human Rights Code (“Code”) requires the employer to provide reasonable accommodation to that employee, up to the point of undue hardship. However, public health and human rights bodies have indicated that, where religious and medical exemptions are provided, they are to be given on a limited basis. Medical exemptions have been narrowly defined as a discrete set of medical conditions (severe allergy, anaphylactic reaction, or a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine)1 and, when it comes to religious exemptions, the Ontario Human Rights Commission has stated that singular beliefs or personal preferences are not protected beliefs under the Code.2 Along the same vein, the British Columbia Human Rights Tribunal confirmed in the recent case of Complainant v. Dr. Bonnie Henry that ideological opposition to, or distrust of, the vaccine is not enough to exempt a worker from following COVID-19 health and safety rules.3
The Ontario Human Rights Commission even released a statement declaring that it is “generally permissible” for an employer to require their workers to vaccinate, as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.4 This provides support for the proposition that, absent legitimate human rights grounds, an employee’s refusal to comply with a mandatory vaccination policy could constitute cause for termination in certain circumstances.
To prove just cause under the common law, an employer must show that an employee engaged in serious misconduct that irreparably damaged the employment relationship such that it could no longer continue.5 Employees are generally required to comply with enforceable workplace policies and an employee’s refusal to do so has been found in other cases to constitute cause for termination. In those cases, the following seven factors have a court’s assessment surrounding whether an employer has cause for dismissing an employee for breaching a safety rule:
1. The policy must be distributed,
2. The policy must be known to the employee,
3. The policy must be consistently enforced by the employer,
4. The employee must be warned that they will be terminated if the policy is breached,
5. The policy must be reasonable,
6. The implication of breaching the policy must be sufficiently serious to justify termination, and
7. Whether a reasonable excuse existed for the employee’s breach of policy. 6
Having regard to the foregoing, a mandatory COVID-19 vaccination policy could be considered reasonable in circumstances where it is adopted as a reasonable precaution to protect workplace health and safety, in accordance with the employer’s obligations under Ontario’s Occupational Health and Safety Act. In cases where employers are legally required to implement such a policy or there is a high risk of infection in a workplace (eg. where workers are in close face-to-face contact with one another, they’re working with vulnerable populations, etc.), a mandatory vaccination policy would likely be considered a reasonable precaution to take to protect workplace health and safety. On the other hand, in cases where employees are able to work from home, or other health and safety measures are able to properly protect the workplace against COVID-19 infection, it could be more difficult to establish that the requirement to vaccinate is reasonable.
In a recent arbitral decision, United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd., a mandatory COVID-19 vaccination policy was held to be a reasonable health and safety precaution for a company providing security guard services. In that case, the employer’s clients were requiring its security guards to be vaccinated in order to work on client sites, and other employees were raising concerns about working with unvaccinated staff members. The arbitrator held that the policy was “reasonable, enforceable and compliant with the Ontario Human Rights Code and the Occupational Health and Safety Act of Ontario”.7 In carving out an exemption for workers with legitimate human rights needs, the arbitrator found that the policy struck the right balance between employees’ human rights and workplace health and safety.
This case stands for the principle that mandatory COVID-19 vaccination policies will be considered reasonable and enforceable in certain workplaces. As such, one can imagine a court going further and finding that an employee’s refusal to comply with a well-drafted and properly communicated vaccination policy to constitute serious misconduct. Such misconduct would put the health and safety of workers in great danger and, in turn, could be considered deserving of summary dismissal. A court would also likely look at contextual factors, such as the employer’s role, employment history, and whether there are any mitigating factors, when determining whether summary dismissal is a proportionate response to the misconduct in question. For example, where an employee blanketly refused to comply with the policy and such behaviour was consistent with a history of disobedience, that could tip the balance in favour of finding that cause exists.
In addition to the developments above, the federal government also recently issued guidance for employers on the completion of Records of Employment in relation to the COVID-19 pandemic, which further lends support to the proposition that employees who refuse to comply with mandatory vaccination policies can be terminated for cause. The guidance directs employers to use “Code M”, which is typically used for cause terminations, on a Record of Employment when the employer terminates an employee because they refuse to comply with a mandatory vaccination policy.
Ultimately, while it is possible – and perhaps likely in certain circumstances – that an employer will have cause to terminate an employee who refuses to comply with a mandatory vaccination policy, absent any judgments from the court or arbitrators at this time clearly answering the question, it is still unclear whether that will indeed be the case. As such, employers and employees alike are strongly encouraged to speak with an employment lawyer to discuss the legal merits of their case when asserting cause in these circumstances. If you’re an employer facing an employee who’s refusing to comply with your mandatory vaccination policy, or you are an employee and have been terminated for cause for refusing to vaccinate, contact a Turnpenney Milne LLP lawyer today.
Footnotes:
1 College of Physicians and Surgeons of Ontario, “COVID-19 FAQs For Physicians”, < https://www.cpso.on.ca/Physicians/Your-Practice/Physician-Advisory-Services/COVID-19-FAQs-for-Physicians>.
2 Ontario Human Rights Commission, “OHRC Policy Statement on COVID-19 Vaccine Mandates and Proof of Vaccine Certificates”, < http://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-
19-vaccine-mandates-and-proof-vaccine-certificates> [“OHRC COVID Policy Statement”].
3 Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119 at para. 12.
4 OHRC COVID Policy Statement, supra note 2.
5 McKinley v BC Tel, 2001 SCC 38.
6 Balzer v. Federated Co-operatives Limited, 2018 SKCA 93 at para. 20.
7 United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd., (September 13, 2021) Arbitrator F.R. Von Veh Q.C. at p. 18.