As vaccination roll-out has been implemented across the country to combat the spread of Covid-19 and reduce the community transmission, it has become a hotly debated topic whether vaccination in the workplace should be mandatory. In this blog, we will address some common questions employees may raise in connection to the vaccination policies at the workplace.

Q: Can my employer require me to be vaccinated against Covid-19 as a condition of employment?

The answer is no. Employers can recommend their employees to take the vaccine. However, they cannot compel them to do it.

Employees may refuse to get vaccinated for a number of reasons such as medical, religious or pregnancy reasons. Employers must accommodate these employees to the point of undue hardship. Otherwise, they will be found to be in breach of the relevant human rights legislation in connection to a prohibited ground of discrimination such as disability, religion and sex.

Q: Is there any law that allows employers to mandate vaccination in the workplace?

There is currently no provincial laws or public health guidance that allow employers to mandate vaccinations in the workplace. Employers could recommend this to their employees. However, they cannot force their employees to get vaccinated for work.

Q: Do I need to report to my employer on whether or not I have taken the vaccine?

No. Generally speaking, employers cannot compel their employees to disclose personal medical information such as their vaccination status.

However, certain employers with legitimate heath concerns are entitled to ask their employees whether they have taken the vaccine such as health care workers.

Q: Can my employer terminate me for cause if I refuse to take the vaccine or disclose whether I have taken the vaccine?

It is highly unlikely that employers could terminate their employees for cause only because they refuse to take the vaccine or disclose their vaccine status.

As termination for cause is considered as the capital punishment of the employment law, an employer has to get over a high hurdle to establish that it has just cause to dismiss an employee.

Generally speaking, an employer may terminate an employee for cause if the employee has been guilty of

a) serious misconduct;
b) habitual neglect of duty, incompetence or conduct incompatible with the duties;
c) wilful disobedience to the employer’s orders in a matter of substance.

The employer has the onus of proving cause for dismissal on the balance of probabilities. The employer cannot justify the termination for cause until it proves that the employee engaged in the misconduct on purpose and there is no alternative options other than terminating the employee.

Therefore, when an employee refuses to take the vaccine or discloses the vaccine status, it is difficult to argue that this behaviour amounts to a “serious misconduct” that justifies termination for cause.

Q: What options does an employer have to maintain the workplace safety if some of the employees refuse to take the vaccine?

Employers also have an obligation to provide a safe work environment free from dangers under the Occupational Health and Safety Act.

If some of the employees refuse to take the vaccine, employers can introduce alternative measures to foster a safe work environment. They could ask these employees to do one of the following:

a) To wear Personal Protective Equipment while at work;
b) To work from home;
c) To work at different hours or locations, if possible;
d) To undergo regular Covid-19 tests;
e) To take a leave of absence.

If none of these methods is feasible, employers could also consider terminating the employees without cause by providing them with reasonable notice or pay in lieu. This can be a tricky area. It is advisable to consult an employment lawyer for legal advice.

If you are experiencing any employment law issues in connection to the vaccination in the workplace, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

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