Question: Can my employer force me to get the COVID-19 vaccine?

The pandemic has led to fraught discussions over rights and freedoms on the one hand, and safety and security of health on the other. From lockdowns to mask mandates, and now vaccinations, you need to be aware of how your rights have been affected over the past year, and how that intersects with your obligations as an employee. You also need to be aware of the fact that your rights outside of your workplace may differ from your rights in your workplace.

While it is within your rights to refuse the COVID-19 vaccine, at work it is often within your employer’s right to terminate you without cause. So, in Ontario, even though your employer cannot strong-arm you into getting vaccinated, your refusal to get vaccinated could result in consequences, such as your termination from employment. In most cases, this would most likely lead to a termination without cause, but, on rare occasions, such may lead to termination for cause.

Refusal to get vaccinated might lead to termination “for cause” “without cause”

In a unionized workplace, the collective agreement would determine whether an employer may terminate an employee “for just cause” if the employee refuses to be vaccinated.

In a non-unionized workplace, it is unlikely to happen, but still possible when mandatory vaccination is reasonable to keep the workplace healthy and safe for other employees or any third parties, such as patients or clients. For example, employers are more likely to justify a mandatory vaccination policy when their employees have to work closely with people whose immune systems are weak or likely compromised, such as clients in long-term care facilities or hospitals, as other alternatives, such as masking and physical distancing, are impractical or much less effective in these types of situations. However, it is usually hard to justify a mandatory vaccination policy, especially if employees are able to work from home or maintain other health guidelines in the workplace while doing their job properly.

Most non-unionized employees working in Ontario workplaces that are not federally regulated can be terminated “without cause”. This means the employer can terminate employees without any cause or reason by giving employees sufficient notice or pay in lieu of notice. So, if you do not get vaccinated, your employer may terminate you on a without-cause basis, even if there is no mandatory vaccination policy in place.

Your employer has a duty to accommodate regarding vaccination policies

There are always exceptions to the rule. Human rights considerations are the most prominent exceptions. Your employer cannot discriminate against you for prohibited grounds under Ontario’s Human Rights Code (“Code”).This means that they cannot treat you differently or punish you for things related to age, disability, religious beliefs, etc. Taking the Code into consideration in your situation, it would depend on why you are not getting vaccinated. For example, if you cannot get vaccinated because of medical reasons such as allergies to the vaccine, you need to inform your employer, who then has an obligation to accommodate you unless it creates undue hardship for them. Another example is that if your religious belief prevents you from getting vaccinated, your employer will have the same duty to accommodate.  The employer may ask for evidence reasonable in the circumstances to establish that you are entitled to accommodation.

Accommodations under the Code may include offering to have you work from home, requiring you to wear a mask at all times, maintaining physical distancing, working in an outdoor environment or isolated indoor place, etc. If your employer fires you without even trying to accommodate you, you could file an application to Ontario’s Human Rights Tribunal for a human rights violation complaint.

In spite of Health Canada approval, if you truly believe the COVID-19 vaccine is dangerous or experimental, the vaccine is unnecessary, or you are afraid of potential side effects, you cannot rely on these reasons alone to support a human rights claim. The Human Rights Tribunal has made it clear in numerous cases that employees have to provide detail and evidence to establish that they have human rights grounds to base their applications in order to proceed, and these beliefs alone, including those stating Covid-19 is a “hoax”, are not the beliefs protected by the Code.

Conclusion

The availability of vaccines has increased to the point that many employers can expect their employees to get vaccinated in a reasonable period of time, which could, in turn, justify a voluntary, or even mandatory vaccination policy. As such, employees should seriously consider getting vaccinated as soon as possible, especially once there is such a policy in place, unless the employee has a human rights ground not to do so. This is not only a sensible way to protect against COVID-19, but it could also help to protect your job.

If your employer is threatening to terminate you due to your refusal to get vaccinated, we recommend you contact an employment lawyer at Hum Law immediately. Call us at (416)214-2329 or Complete our Free Assessment Form Here