Question: My employer has given me a mandatory vaccination notice stating that if I do not get vaccinated, they will terminate my employment without severance or termination pay. What are my legal rights?

Many employers have implemented mandatory vaccination policies that require employees to be fully vaccinated against COVID-19.

If you are terminated because you failed to comply with a mandatory vaccination policy, the first question to consider is whether there is any breach of human rights. Second, you have to consider if your employer will do so on a “with cause” basis, or will terminate “without cause” and provide termination pay.

Finally, if there is to be termination pay, you have to find out if it will be based on the minimum standards of employment law legislation – generally in Ontario, the Employment Standards Act (“ESA”) – or on common law reasonable notice.

Mandatory vaccination policy exemptions

There are few exemptions to mandatory vaccination policies under human rights legislation. In Ontario, the Human Rights Code (“Code”) indicates exemptions would be religious belief or a medical condition protected by the Code. However, both long- and short-term conditions preventing an employee from being vaccinated are rare (such as a diagnosed allergy to something in the vaccine). Employers are entitled to ask for proof of the medical condition. Further, religious exemptions are also rare, as there are few religions or creeds that prohibit vaccination.

Termination without cause

An employee can always be terminated without cause, so the fact that it is based on vaccination status does not matter, so long as your human rights are not being breached. In this case, employers generally do not cite why you have been terminated. However, if you are terminated without cause, your employer must provide you with termination pay, sometimes called a severance package. The amount of this severance package will depend on whether you are entitled to common law reasonable notice or only the ESA minimum, with the former usually entitling you to a significantly larger severance package.

Termination with cause

Your employer could also terminate you with cause, for failure to comply with the mandatory vaccination policy, and not provide you with any notice or pay in lieu of that notice.

Terminating an employee with cause and not providing any termination pay or severance is more difficult for an employer. They must demonstrate that you were “guilty of wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and was not condoned by the employer.” Some employers will allege that this high standard has been met by an employee failing to comply with a mandatory vaccination policy. However, this has not been tested in the courts and may only be justifiable in certain settings, such as hospitals or nursing homes or not at all. So today employees should contact us and consider proceeding to sue and test the employers resolve. 

You may also be terminated with cause but still provided with a severance package that satisfies the minimum standards of the ESA. However, your employer can withhold your common law entitlement by relying on the common law standard of cause or just cause. In this scenario, your employer has acknowledged that your misconduct does not meet the higher ESA standard but does meet the lower just cause standard to justify termination. The onus remains on an employer however to show that breach of unilaterally imposed vaccination policy can be basis for common law cause. If they cannot you might still be entitled to full severance and termination pay.

We encourage you to seek assistance from Hum Law firm immediately if you are terminated to ensure you are treated fairly.

If you need guidance from an experienced employment lawyer, call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca
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