By: Mahta Talani
Vaccination is an invasive medical treatment and a personal decision requiring individual consent. As of today, approximately 71% of Ontarians are fully vaccinated. However, although a minority, that leaves 29% of Ontarians with questions about their rights and their job security. A recent poll completed in August 2021 by KPMG found that 62% of businesses planned to mandate employee covid-19 vaccines. As of September 22, 2021, Ontario now requires proof of full vaccination in certain settings such as, gyms, bars, restaurants, sporting facilities and more. One can be exempt from the new vaccine requirements in Ontario if they can provide proof of a medical exemption. However, staff in the aforementioned settings are not required but only encouraged to receive vaccination, unless their particular employer chooses to mandate vaccines. In addition, Prime Minister Trudeau has confirmed a “clear requirement for vaccination for anyone who works for the federal government”.
So, what does all this mean for the everyday worker?
Currently, Ontario does not have a regulation or statute mandating vaccines for all employees. As per the Occupational Health and Safety Act employers have legal obligations to ensure employee safety and Covid-19 mitigation strategies are part of ensuring this safety. This may be part of a well-founded reason for mandating vaccines as employers attempt to balance various legal obligations. However, vaccine mandates will likely widen socio-economic gaps leaving precarious workers with little to no personal choice in receiving the vaccine. From a labour policy standpoint, it is important to note that individuals working in customer service roles, such as the hospitality sector, do not have the option to work from home. These roles also faced continuous economic downturn as Ontario entered multiple stay-at-home emergency orders starting in March 2020 and ending in July 2021.
Some employers have opted to require vaccination to come into the workplace, while allowing employees wishing to remain unvaccinated to continue work from home. Individuals in white-collar employment sectors have had the option to work from home throughout this pandemic, maintaining their financial security. When it comes to vaccination mandates, these employees are yet again in an advantaged position because they can continue to work from home. In the hospitality sector, unless you are physically in the workplace you cannot work. This distinction compounds the existing socio-economic disparity between individuals in these different sectors.
Which leaves us with the following question: what options do employees who would like to remain unvaccinated have?
Employees are protected under the Ontario Human Rights Code for religious exemptions to vaccination. Additionally, employees, like the rest of Ontarians, can receive exemptions to vaccination mandates due to medical reasons, such as life-threatening allergies to one of the ingredients in the vaccine.
Covid-19 has posed a variety of legal questions in the employment realm, one of them being, whether refusal to comply with workplace vaccination policies is just cause for dismissal. Just cause is reserved for egregious behaviour and many opine that a refusal to get vaccinated does not fall under such category. However, neither Ontario courts nor Canadian courts have ruled on this issue as of yet. Thus, if an employer dismisses an employee for refusal to get vaccinated, employees are owed severance (if applicable) and termination pay. In the case that employers refuse to comply, employees have the option to seek legal action for wrongful dismissal.
Another potential legal avenue for employees is a claim of constructive dismissal by asserting that the employer unilaterally changed the terms of the employment contract without reasonable notice. This can amount to a repudiation of the contract. While this may be a difficult claim to make, courts have yet to decide any such cases. It is, however, likely that courts would attempt to balance public health goals and employment standards, which may ultimately err on the side of flexibility in favour of these vaccination mandates.
While when it comes to covid-19 vaccinations we are often left with more questions than answers, only time and hopefully Canadian courts may elucidate more direction in the future.
