Vaccine Mandate Policies and Refusing to Work
As Ontario takes on the fourth wave of the COVID-19 pandemic, employers continue to plan a return to normal operations. Vaccinated employees are much less likely to contract COVID-19 and bring it to the workplace and are less likely to spread it if they do contract it. But can employers mandate vaccinations for their employees? And can unvaccinated employees refuse to work over a vaccine mandate?
Vaccine mandates are a hot topic. We have all seen images or heard about protests at government buildings and hospitals after the Ontario government announced it was making COVID-19 vaccination policies mandatory for certain high risk settings.
Even in situations where a vaccine policy is not government mandated, employers may implement such a mandate to meet obligations under the Occupational Health and Safety Act (OHSA), prevent workplace spread of COVID-19, and allow their operations to return to normal.
The Ontario Human Rights Commission released a statement on vaccine mandates and vaccine certificates. In it, the OHRC acknowledges that mandating vaccinations, and requiring proof, is generally permissible to protect people in the workplace. It also says that while there is a duty to accommodate people who cannot get the vaccine on grounds recognized by the Ontario Human Rights Code (Code), “a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code,” and, “personal preferences or singular beliefs do not amount to creed for the purposes of the Code.” In other words, receiving the COVID-19 vaccine is voluntary, but if an employee’s refusal to be vaccinated is not based on a recognized medical exemption or on creed, such a genuine religious belief, requiring that employee to be vaccinated would not amount to discrimination under the Code.
Can an employee refuse to work over a vaccine mandate?
With vaccine mandates being implemented in several sectors, some employees choosing not to be vaccinated are refusing to work.
Generally, a work refusal by an employee that arises from a concern about health or safety in the workplace is protected under the OHSA. It gives an employee the right to refuse work they believe is unsafe to them or another employee prompting a series of steps to determine the safety of that work. In a situation where an employee refuses to work because of a vaccine mandate, it is not a valid work refusal under the OHSA as the employee is not refusing work that they feel is unsafe. Instead, their refusal is based a disagreement with the employer’s policy.
A vaccinated employee may also assert a work refusal if they are made to work in close proximity of an unvaccinated employee, but this claim will likely not stand where the employer is enforcing all reasonable protective measures with the unvaccinated employee.
To date, the Ministry of Labour has not found that the general danger posed by COVID-19 is enough on its own to justify a refusal to attend the workplace. If an employer continues to follow safety guidelines then it can require workers return to the physical workplace and by extension, is justified in disciplining an employee who refuses to attend the workplace after the work refusal is unjustified.
Can an employer terminate for work refusals related to a vaccine mandate?
Employers have the right to determine how their business will operate, so long as it is done in a lawful manner[i]. As a fundamental term of employment, an employee must follow their employer’s lawful directions, including its policies, and must carry out the duties for which they are employed. An unjustified failure to do so may be grounds for termination. Considering this, an employee who refuses to be vaccinated on the grounds of personal preference and refuses to attend work because of a vaccine mandate policy can be disciplined, possibly up to termination of employment for cause. Certainly, the employer could terminate without cause in this situation.
Before taking this step, employers should consider whether it is possible for an employee to attend the workplace with additional safety measures, such as wearing personal protective equipment (PPE), taking frequent COVID-19 tests, or working from home. Even if an employee is not eligible for accommodation, it is worth reviewing whether an alternative to termination is a possible solution. But if an alternative is not reasonable for the particular workplace, the employer may not have any options left other than termination. That is, if the employee’s refusal to be vaccinated means that they cannot carry out the duties of their position safely then termination may be the only option.
Until the pandemic ends
While an employer may be able to terminate an employee for cause for an unsupported work refusal, given the risk of damages if the termination is determined to be unjustified, it’s vital to consider each situation on a case-by-case basis and consider alternatives including unpaid leaves of absence or without-cause terminations.
With the growing strength of variants of the COVID-19 virus, it is unclear when this pandemic will come to some end in Ontario or if the new norm will be that we learn to live along side of it. Employers will need to continue reviewing their plan against public health guidelines to protect against COVID-19 transmission in their workplace even with vaccinated staff.