Many employers have implemented COVID-19 vaccination policies to meet their obligations under the Occupational Health and Safety Act (“OHSA”) to provide a safe workplace. Some have done this on their own accord, while others were required to by law. Canadians are being encouraged to get a third dose of the COVID-19 vaccination, with many employers now requiring that their employees get booster shots.

The purpose of a COVID-19 vaccination policy is to provide a safe workplace. It could be considered reasonable to require employees receive boosters to satisfy this obligation. In effect, there is no difference between the original two doses and a booster, they all serve to create a safe workplace.

 

Important steps to draft and implement a proper COVID-19 vaccination policy

However, vaccination policies have become a difficult issue, and a source of litigation. Adding to the complexity, provincial governments have started to relax restrictions. We recommend employers take the following steps to protect their business:

1. Ensure your COVID-19 vaccination policy allows for refusals based on medical or religious grounds protected by Ontario’s Human Rights Code (“Code”);
2. If you intend to place employees on unpaid leave or terminate them for cause due to non-compliance with the COVID-19 vaccination policy, ensure that is clearly communicated;
3. Ensure your COVID-19 vaccination policy clearly lays out that employees will be required to get boosters;
4. Ensure all new employment agreements permit temporary layoffs and explicitly state that employees must comply with the COVID-19 vaccination policy; and
5. Require new employees to disclose their vaccination status before offering them a position; and make any offer contingent upon them explicitly agreeing to the terms of the vaccination policy.

Can an employee be terminated for refusing to comply with a vaccination policy?

The question that most employers are asking is whether they can terminate an employee for cause due to non-compliance with a COVID-19 vaccination policy. In this case, it would be due to refusing to get a booster.

While the reasonableness of COVID-19 vaccination policies is starting to be addressed in the unionized context, a legal decision has not yet touched on whether a termination for cause is reasonable. Further, no court has wrestled with the issue of COVID-19 vaccination policies in a non-unionized workplace.

An employer can always terminate an employee without cause. If you have recently updated your employment contracts, and have consulted with an experienced employment lawyer to ensure the termination provisions are enforceable, this may be the safest way to terminate an employee due to non-compliance with a COVID-19 vaccination policy. With properly drafted termination provisions you can limit an employee’s entitlement to the Employment Standards Act, 2000 (“ESA”) minimums. Further, it will dissuade employees, and their lawyers, from claiming wrongful dismissal.

Alternatively, you can terminate an employee for cause due to non-compliance with your COVID-19 vaccination policy. There are, however, risks associated with this approach. As noted, no court has determined whether termination for cause due to non-compliance with a COVID-19 vaccination policy is reasonable. Presently, decisions related to unionized workplaces suggest courts will take a contextual approach, weighing factors such as whether the COVID-19 vaccination policy is necessary to ensure workplace safety. This means that employers should act cautiously and terminate employees without cause where reasonable, such as when the employee’s entitlements are limited to the ESA minimum and have been reviewed against the Waksdale precedent which invalidated ESA limitations.  More practically, when employees are offered no termination package upon termination, they are significantly more likely to claim wrongful dismissal.

Vaccination policies, including those that require employees receive booster shots, are likely reasonable if clearly drafted and transparently rolled out. Issues may arise, however, when employers are forced to terminate employees due to non-compliance.