Can my employer force me to get the Covid-19 vaccine?

Following the rollout of vaccine passports, many unvaccinated Canadian’s are feeling shut out of everyday life. One of the few spaces left for people to escape their homes is the workplace. With the increasing uncertainties caused by new and highly infectious COVID-19 variants, more and more employers are considering mandating vaccinations. Many Canadian’s who have refused the vaccine remain unsure of their rights: can an employer force its employees to get vaccinated? What are the consequences of refusing? These questions and more are answered below:

Can my employer mandate vaccines in my workplace?

In the age of COVID-19, employers are having a difficult time keeping their employees safe and healthy. Not only is it a requirement under the Ontario Occupational Health and Safety Act (“OHSA”) for employers to provide their employees with a safe workplace, but a workplace full of employees that are sick and at home is obviously not productive or beneficial to an employer. Because of this, employers are considering creating vaccine policies that would make it mandatory for all employees to be vaccinated.

Is this legal?

Nowhere in the OHSA nor the Employment Standards Act are mandatory vaccination policies addressed. With that being said, it is not necessarily illegal for an employer to create one of these policies. The validity of an employer’s policy will heavily depend on the specific industry. Vaccine mandates in the healthcare industry, such as hospitals and long-term care homes, are far easier to defend than in industries where work can be done remotely or by implementing social distancing.

Can my employer make me get vaccinated?

An employer can never force an employee to receive a vaccine. They cannot make you put the needled in your arm. However, an employee’s choice in the matter is rather limited—either get vaccinated or you may be fired.

Can my employer fire me for refusing to get vaccinated?

The short answer is “yes” but the more complicated question is “how”? There are two ways an employer can terminate and employee: with cause or without cause.

With Cause

In the non-unionized context, with cause means the employer has a reason for firing the employee related to their misconduct. This is usually something rather serious that damages the employment relationship beyond repair (e.g. theft, insubordination, fraud, assault, etc.).  In unionized workplaces, ‘with cause’ is defined by the collective agreement.

For an employer to fire an employee ‘with cause’, an employer must have a legitimate vaccination policy in effect, which unambiguously states that refusing vaccination could lead to termination. Again, a legitimate vaccination policy will be easier to prove in some industries compared to others. A nurse taking care of immunocompromised patients that refuses to be vaccinated is much more likely to be validly terminated for cause than an IT specialist that can work remotely.

Without Cause

Without cause—just as it sounds—is the termination of an employee without needing a reason. This is often done because of restructuring, cost-cutting or, in this case, to ensure complete compliance with a vaccine mandate. To fire an employee without cause, an employer has to give the employee notice or pay in lieu of notice. Because an employer does not need a reason to fire an employee, it can fire any employee that does not comply with a vaccine mandate as long as it provides notice or pay in lieu of notice. The exception to this rule is that an employer cannot terminate an employee for refusing to be vaccinated if the refusal is related to a protected ground under the Ontario Human Rights Code (see: Is there any way I can refuse to be vaccinated and keep my job?).

Can my employer discipline me for refusing to get vaccinated?

Much like being terminated, if your employer has a legitimate and unambiguous vaccination policy in effect that explicitly mentions discipline for refusing to comply, it is possible that you could be on the receiving end of this discipline. However, depending on your industry, it may be difficult for your employer to justify their policy and, therefore, it would be difficult for them to justify disciplining you.

Is there any way I can refuse to be vaccinated and keep my job?

Some employees are unable to get the COVID-19 vaccine due to religious or medical reasons. These employees are protected from being terminated by the Ontario Human Rights Code (“OHRC”). Employers have a duty to accommodate protected individuals who are unable to comply to the point of undue hardship. Undue hardship includes an employer experiencing safety risks or financial hardship, for example. Accommodation can include working from home, maintaining physical distancing, or working in an isolated space.

A Warning to Employees

While this is generally true, these protections are specific to those who truly need accommodation and your employer may ask for evidence (reasonable in the circumstances) to prove that you are entitled. For example, if you claim that you are unable to receive the vaccine due to a medical condition, and this medical condition upon investigation turns out to be neck strain, it is unlikely you will be entitled to accommodation/ exemption from the policy.

Finally, political beliefs are not protected by the OHRC and neither are beliefs that COVID-19 is a “hoax”. Even if you truly believe that the COVID-19 vaccine is harmful or “too new”, that heard immunity is more than enough protection, or if you are afraid of the potential side effects, these reasons alone are not enough to support a human rights claim.

Please note that this article is only to be used as general information and it does not constitute legal advice. We encourage employers and employees to contact Levitt Sheikh directly to better understand vaccination-related issues and seek legal advice to their questions.