By: Matthew Kimevski
As non-unionized workers start heading back into the workplace, those who are unvaccinated may wonder whether their employer can require or demand vaccination of their workforce.
Why Would an Employer Want to Mandate Vaccination?
Employers have a duty to take every precaution reasonable in the circumstances for the protection of a worker.[1] What is reasonable depends on what injury or illness the employer is trying to protect the employee from in that specific workplace.
To uphold this duty, employers may be unsure whether they should mandate vaccination, or simply uphold the government mask policy[2] for both unvaccinated and vaccinated employees. This uncertainty may cause legal issues for the employer if they overstep what is considered reasonable and infringe on a prohibited ground of discrimination. Yet, if the employer does not do enough to protect their employees, resulting in illness of employees and/or customers, this may lead to claims of negligence or a breach of implied contractual obligation.[3]
There is also a situation in which an employer may be ordered by the government to enforce a vaccine mandate. This seemed to be the case for some employers in Ontario, as a plan was being implemented to mandate vaccination for high-risk settings like hospitals and long-term care facilities.[4] It should be noted that this plan was cancelled in early November.[5] The Federal government has also issued a plan to mandate vaccination for all federal workers, and federally regulated air, rail, and marine transport sectors.[6]
Can an Employer Demand COVID-19 Vaccination in the Non-unionized Workplace?
There is no case law directly addressing whether an employer can mandate COVID-19 vaccination. Regardless, where an issue may arise is when employees that are already part of the workplace are mandated to get vaccinated, and the mandate may unilaterally change an employment contract, and an employee doesn’t agree to the change. Additionally, it’s essential the employer does not infringe on the employee’s human rights.[7]
In modifying an existing contract, case law has determined that there are essentially three options an employee can take when faced with an amendment:
- Accept the change on altered terms;
- Reject and sue for damages under constructive dismissal; or,
- Reject the amendment, where the employer may terminate the contract with proper notice and offer re-employment under the new terms, and claim wrongful dismissal.[8]
Whether the mandate for COVID-19 vaccinations is an amendment to an existing contract depends on the individual contract.
It’s important for employers to consider how they deal with unvaccinated employees who don’t have a relevant exemption under human rights regulations.[9] Employees subject to the mandate may claim the mandate constitutes constructive dismissal, that is, a fundamental change to a contract or behaviour that leads to the employee considering themselves dismissed and entitled to damages.[10] With such a claim, courts would balance the business interests of the employer and the effects it has on the employee.[11]
One specific scenario employers might find themselves in is putting unvaccinated employees on unpaid suspension. Doing so may be considered constructive dismissal unless there’s a term in the contract that gives the employer the power to do so, or if the employee has committed some form of serious misconduct.[12] If an employer terminates an employee without proper notice, the employee could claim wrongful dismissal to recover damages.
The only instance in which an employer can terminate employment without notice is due to summary dismissal, which is essentially when the employee breaches the contract through misconduct that undermines the employment relationship.[13] Whether the refusal of vaccination would be considered serious misconduct by the courts is unknown, so employers should definitely give notice of termination to avoid this situation.
How does a Mandatory Vaccine Policy relate to Human Rights?
An employer’s COVID-19 vaccine mandate must respect the human rights of their employees. The Ontario Human Rights Code states that everyone has a right to equal treatment without discrimination based on religion, disability, and many other factors.[14] If one, for religious or medical reasons cannot get the COVID-19 vaccine, and an employer vaccine policy requires it, the employer has a duty to accommodate the disability or religion.[15]
For accommodation of disabilities this may require the employer to explore all reasonable opportunities, such as: allow the employee to work from home; have the employee work in a more secluded area of the workplace, ensuring the employee doesn’t come into contact with customers; and, consider if the employee can perform a different existing or modified job.[16] After the employer exhausts all options, they have successfully followed their duty to accommodate, and this would be considered the point of undue hardship.
Undue hardship occurs when the employer can justify that they cannot further accommodate the employee, as doing so would be unnecessarily demanding on the employer.[17] An example of undue hardship could be the issue of safety, which would mean that the accommodation is a safety risk to other employees and people.[18]
If an employer creates a vaccine mandate that discriminates against people for religious reasons or those with disabilities, it’s possible they can still justify the policy by claiming it’s a bona fide occupational requirement.
Case law has determined that a bona fide occupational requirement can be justified when the employer shows the standard is rationally connected to the performance of the job, the standard is enacted in good faith, and the standard is reasonably necessary and accommodation would cause undue hardship.[19]
In the case of COVID-19 vaccine mandates, an area where employers may struggle is proving whether the mandate is reasonably necessary. In this situation, the mandate might fail to be considered a bona fide occupational requirement on the basis that the mandate may be too extreme (if termination is involved), and there is no other means to achieve the purpose of the policy.[20] It would be examined whether the employer can’t accommodate the employee in ways that were listed earlier, such as working from home, social distancing, etc. If they cannot prove accommodation causes undue hardship, the claim that the policy is bona fide would fail as it’s not reasonable.
Conclusion
As employers try to navigate this unclear situation, there are several important factors to consider, such as:
- Whether a vaccine mandate is reasonable for the specific workplace;
- Whether there are any government mandates for the vaccine;
- What plans are in place for employees that refuse vaccinations; and
- Whether it’s possible to accommodate employees that cannot be vaccinated due to medical/religious reasons
While this outlines what an employer may do, it can’t be said this is what they should do as there is no definitive case law to guide a determination. This is unknown waters employers are treading in, which continues to evolve, and will likely see legal challenges.
Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.
[1] Occupational Health and Safety Act, RSO 1990, c O.1, s. 25(2)(h)
[2] Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, Ontario Regulation 364/20, s.2(3.1)
[3] David J. Doorey. The Law of Work: Complete Edition. (2017) at pg. 318
[4] Chris Fox. CP24. Ontario hits pause on plan to lift remaining COVID-19 restrictions as it mandates vaccine policies for some high-risk settings. Website: https://www.cp24.com/news/ontario-hits-pause-on-plan-to-lift-remaining-covid-19-restrictions-as-it-mandates-vaccine-policies-for-some-high-risk-settings-1.5549934
[5] Jessica Patton. Global News. Ontario will not mandate COVID-19 vaccines for hospital workers. Website: https://globalnews.ca/news/8347039/ontario-covid-mandatory-vaccine-hospital-workers/
[6] Julie Gordan and Steve Scherer. Reuters. Canada to Require COVID-19 Vaccines for Federal Workers. Website: https://www.reuters.com/world/americas/canada-require-vaccines-all-federal-public-servants-2021-08-13/
[7] Human Rights Code, RSO 1990, c H.19
[8] Wronko v. Western Inventory Service Ltd., 2008 ONCA 327, 65 CCEL (3d) 185, at para 34-36
[9] Supra note 7
[10] Farber v. Royal Trust Co., [1997] 1 SCR 846 at para 24; Supra note 3 at pg.188-189
[11] Supra note 3 at pg. 189-190
[12] Supra note 3 at pg. 193
[13] Supra note 3 at pg. 170 -172
[14] Supra note 7 at s.5(1)
[15] Supra note 7 at s.2(1)
[16] Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 [2008] 2 SCR 561 at para 14
[17] Supra note 3 at pg. 390
[18] Supra note 3 at pg. 390
[19] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, at para 54
[20] Entrop v Imperial Oil Limited, [2000] 50 OR (3d) 18 (CA), at para 97