Question: We have a mandatory vaccination policy in place but 3 of my employees refuse to get vaccinated. It is making the rest of my staff uncomfortable, and I want to make sure that rules are followed. Can I legally fire them?

Answer:

The Occupational Health and Safety Act (“OHSA”) requires that employers provide a safe workplace, including the protection of employees from infectious diseases. Many employers are now implementing vaccination policies on their own volition, while other employers, such as those in in high risk settings, have been required by law to implement vaccination policies.

Often, these vaccination policies will state that if an employee refuses a COVID-19 vaccine, and in turn breaches the vaccination policy, they could be terminated with cause. In Ontario, termination with cause has a very high standard and it is complicated. Before terminating an employee with cause because they refuse to be vaccinated, consider the following.

• Is the employee exempt from mandatory vaccination for a reason protected by Ontario’s Human Rights Code (“Code”)? For example, an employee may claim an exemption on the basis of the protected grounds of disability or religious belief. In this scenario, provided that the employee provides satisfactory evidence to support the claim for an exemption, employers are required to accommodate that disability or religious belief to the point of undue hardship, such as health and safety risks and financial hardship.
• Can the employee still perform their duties without putting their fellow employees at risk? For example, could the employee continue to work from home. If so, it may be more difficult to justify with cause termination, as the employee’s refusal to get vaccinated is not necessarily creating an unsafe workplace.
• Is this a long-service employee with a clean disciplinary record? If so, it may be more difficult to justify termination with cause.
• Was the employee aware of the vaccination policy and given adequate notice about its implementation? If not, most courts would view termination with cause as too harsh and it would likely not be upheld.

While in some circumstances termination with cause due to an employee refusing to be vaccinated may be justified, in others it will not. Accordingly, we caution employers to tread carefully, and instead rely on without cause terminations. Most employers in Ontario retain the right to terminate an employee without cause, generally so long as they provide reasonable notice of termination. This approach is more prudent because of the risk that termination with cause due to a refusal to get vaccinated might not be upheld by a court.

We encourage you to contact Hum Law for support because, ultimately, terminations are complicated and contextual.

Call us at (416)214-2329 or email info@thehumlawfirm.ca

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