can workers who decline vaccination hold on to their jobs?

by: joanne lauciusgrowing numbers of employers are introducing their own workplace vaccination policies that go above and beyond provincial regulations.the ottawa hospital, the perley and rideau veterans’ health centre, the kingston health sciences centre and the university health network in toronto are among the health institutions that have policies that say unvaccinated staff will be suspended or dismissed.but beyond this employers need to think about creating their own vaccine policies, said patrick stepanian, the legal manager at peninsula canada, a human resources consultant to small- and medium-sized employers, typically workplaces with between 20 and 40 employees. of peninsula’s 4,400 clients, about 70 per cent have asked about vaccination policies.aside from federally regulated industries such as airlines, almost every other business in ontario falls under the provincial employment standards act. under the act, employers have the prerogative of choosing where employees work and generally setting the conditions of work, stepanian said.“an employee can say, ‘i don’t want to (be vaccinated).’ it’s a position that will lead quicker to the employee finding themselves without a job. at the end of the day, it runs counter to safety and public health,” stepanian said. “there are consequences.”unless workers are under covered by a collective agreement, they can be dismissed for any reason at all, said employment lawyer and mediator stuart rudner, author of you’re fired! just cause for dismissal in canada. this kind of dismissal is called “without cause,” and the worker is entitled to severance pay.“you can be dismissed for any reason and no real reason at all. there’s nothing unlawful about it,” rudner said.dismissal for “just cause” must be proven, but does not require a severance.this raises the intriguing question of whether refusal to be vaccinated constitutes  “just cause” for dismissal, rudner said. a worker who refuses to abide by vaccination policy may be guilty of insubordination: failing to follow a rule or direction.there would only be “just cause” for dismissal if the rule or direction was reasonable, and this would depend on the workplace scenario, he said.while some employers may want to make vaccination a necessary condition of employment, they should first assess whether that’s reasonable, stepanian said. workplaces that can offer accommodations such as remote work would likely have a hard time justifying mandatory vaccination.“what’s reasonable can vary. having said that, we’re still in a pandemic.”while health-care workplaces are obvious places for policies, there other workplaces where a policy is advisable, he said. there are scenarios where customers at a business, such as a restaurant, must produce proof of vaccination, but not the employees working there.employers should have a separate system in place to narrow the potential gap between unvaccinated employees and vaccinated customers, stepanian said.“it does create a potential for an absurd situation where an an unvaccinated person could, for example, be the gatekeeper.”policies can be modelled on the provincial government’s proof of vaccination guidelines for the general public or they can draft their own policies. if a new employee is working from home, it is advisable to tell them they will eventually be required to come into an office.“someone hired during the pandemic will think that working from home is the starting point,” stepanian said.

employers do not want to face human rights complaints, rudner said, but medical and religious exemptions will apply to only a small number of employees.so far, ontario’s medical exemptions for vaccination against covid-19 are limited to only two conditions: those who have an allergic reaction to a component of a vaccine, which must be confirmed by an allergist or immunologist; and those who have suffered from two kinds of heart inflammation, myocarditis or pericarditis, after receiving their first vaccine.religious exemptions are also likely to be limited.the ontario human rights commission released a policy statement this past week saying that, while receiving a vaccine is voluntary, the commission’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the ontario human rights code.the commission said it was not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the code.“even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or covid testing requirements,” the ontario human rights commission said.sara slinn, a law professor who teaches employment law at osgoode hall law school, said she found the commission’s policy statement to be “quite strong.” the burden would be on the complainant to prove that is discrimination. they might have to provide textual evidence or an expert witness in a particular religion, she said.“a person may have a personal code of behaviour, but that is not at the same level as a creed,” she said.will having a vaccination policy give an employer protection from litigation?“i don’t know of anything that will give you 100 per cent protection. but there are steps that you can take to minimize your risk. i don’t know what the future may hold. people may file a court case. we don’t know where the chips will fall,” stepanian said.“there is so much confusion right now. if you’re an employer, you want your employees to know what you are doing to ensure their safety, especially if people have been away for a long time,” rudner said.“you want to let employees know what is expected of them. as long as everyone knows what’s expected of them, that’s fair.”