Employee rights and mandatory vaccine policies

Has your employer enacted a mandatory vaccine policy that you’re unsure about complying with?

Are you hesitant about getting vaccinated against COVID-19 or unable to get the vaccine due to a health condition or religion?

Are you an employer unsure what to do around vaccines in your workplace?

We've carefully researched the legal issues surrounding these questions, and have put together this guide to shed some light on the most common questions we've heard.

But keep in mind that this is a complex and rapidly developing area of law, and the details will vary from case to case. Remember that the information here isn't legal advice and you shouldn't rely on it as such - if you'd like advice about your particular situation, please arrange a consultation with one of our Hamilton employment lawyers.

Question #1: Is it legal for my employer to enforce a mandatory vaccination policy?

It's very likely that the answer to this question will be: Yes.

Employers set the parameters for how work is to be conducted safely in the workplace. This is not generally a negotiable component of the employment contract, especially outside unionized sectors. Pursuant to the Occupational Health and Safety Act, employers must take every precaution reasonable in the circumstances to protect their workers in the workplace. For the same reason that there can be a mandatory hard hat policy on a construction site, a mandatory COVID-19 vaccine policy can likely be required in your workplace.

This does not mean that employers can force an employee to be vaccinated. But employers can likely make hiring a new employee contingent on their vaccination status, and can also likely make continued employment contingent on adherence to a reasonable vaccine mandate at work.

Question #2: Is an Ontario employer required to mandate vaccines in their workplaces?

Outside certain industries, the answer to this is: No.

Most employers in Ontario are not legally required to enact mandatory vaccine policies as of the date of this article. However, in some industries, the Chief Medical Officer of Health has issued directives requiring mandatory vaccine policies to be in place. This is the case, for example, in healthcare and long-term care settings.

The Ontario government has also stipulated that employers will have to follow the Directives of the Chief Medical Officer of Health. So further directives regarding vaccine mandates at work might be forthcoming.

It's worth noting that, before COVID-19, the government had already been mandating vaccines in certain settings for decades. The Immunization of School Pupils Act requires all parents to have their children vaccinated against certain diseases in order to attend school in the province, subject to a few exceptions. Additionally, it has long been the case that employers in various health-sensitive sectors have lawfully required employees to be fully vaccinated against diseases such as Measles, Mumps, Rubella, Polio and others in accordance with the recommendations set out in Health Canada’s Canadian Immunization Guide.

It's also worth noting that even if employers aren't required to implement a policy, they are being very strongly encouraged to do so. For example, on August 30, 2021, the City of Hamilton’s Medical Officer of Health ‘strongly recommended’ that local employers enact a COVID-19 vaccination policy and has publicized guidelines for the development of a policy.

Question #3: Isn't this discriminatory against unvaccinated people?

It is important to remember that employers are permitted to discriminate against employees so long as the grounds for discrimination do not fall under the prohibited grounds of discrimination set out in the Human Rights Code (or other applicable human rights legislation).

For example, as long as they can avoid treading into other protected grounds (like sex, religion and disability), an employer might require that employees have a particular world view, intelligence level, skill set, or even body type. These forms of discrimination are not only lawful, but common place. Discrimination on the basis of vaccine status alone would not fall under any protected ground under human rights law (subject to the human rights considerations discussed below).

Question #4: What about those with human rights exemptions?

Employees who are legitimately unable to comply with a workplace vaccine mandate because of a protected ground in the Human Rights Code such as "creed" or "disability" will be entitled to accommodation by an employer and exempt from the specific requirement to get vaccinated (although other requirements may apply to these individuals).

However, applicable human rights exemptions are likely to be very rare, and there are limits as to how far an employer has to go to accommodate someone’s creed or disability.

Discrimination based on creed

It will prove difficult for an employee to establish that being vaccinated goes against her creed, given the absence of an anti-vaccine doctrine prescribed by the major world religions.

Having said that, "creed" as listed in the Code has been generally found to go beyond "religion," and has been found to consist of a set of sincerely held religious beliefs and practices that need not be based on the edicts of an established church or particular denomination. Where vaccine opposition is found to be part of an overarching system of belief that governs an employee's conduct and is integral to her identity, a creed may be established. Other relevant considerations would be whether the belief system addresses ultimate questions of human existence, including ideas about life, purpose, death, God, and whether the system of belief has some "nexus" or connection to an organization or community that professes a shared system of belief.

Another consideration would be the employee’s vaccine history: it would certainly be relevant if an employee's creed didn't prevent her from being vaccinated against tetanus, for example, but the employee is claiming it prevents them from being vaccinated against COVID-19.

To date, there has been no Ontario Human Rights Tribunal precedent to support the position that vaccine opposition alone can attract Code protection on the basis of creed. The Ontario Human Rights Commission’s stated position is that "a singular belief or personal preference against vaccinations or masks does not appear to be protected on the ground of creed under the Code."

Discrimination based on disability

If an employee suffers from a disability or medical condition that actually prevents her from being vaccinated against COVID-19, the Code will apply. However, to date, there have been no Human Rights Tribunal precedents based on these facts.

Ontario’s Chief Medical Officer for Health has stated that:

There are likely to be very few medical exemptions to COVID-19 vaccination. The largest group of individuals who receive a medical exception will be those with severe allergic reactions or anaphylaxis to a previous dose of a COVID-19 vaccine or to any of its components and who have been assessed by an allergist/ immunologist to review methods for possible (re)administration of a COVID-19 vaccine... Another group of individuals who may receive a medical exemption are those who are delaying their second dose because of a diagnosed episode of myocarditis/pericarditis after receipt of an initial dose of an mRNA vaccine.

Employees seeking to be exempt from a workplace vaccine mandate will have to provide sufficient medical documentation to the employer substantiating a medical condition that prevents vaccination. Employers will have to be careful to defer to the opinion of an employee’s physician and to accommodate employees with a bona fide medical exemption.

Accommodating employees

For the most part, an employer cannot discriminate against an employee who has a Code-protected ground for refusing to become vaccinated, and must accommodate that employee up to the point of undue hardship.

What form this accommodation might take will depend on the workplace in question. Can the exempt employee work from home? Work in an isolated location? Wear additional PPE and undergo regular testing? Or should the accommodation just take the form of an unpaid leave of absence until circumstances allow for the employee to return? Employers are afforded a great deal of discretion in determining the form that reasonable accommodation might take in a given case, and employees have no right to insist on their preferred form of accommodation where the employer has chosen a reasonable alternative.

In certain limited circumstances, an employer may be able to successfully advance the argument that being fully vaccinated constitutes a bona fide occupational requirement. In accordance with Human Rights Tribunal jurisprudence, that would permit the employer to discriminate on the basis of vaccine status even where an employee’s refusal is based on a Code-protected ground. An employer would have to establish that such a requirement:

• Was adopted for a purpose or goal that is rationally connected to performing the job;
• Was adopted in good faith, in the belief that it is necessary to fulfill a legitimate work-related purpose; and
• Is reasonably necessary to accomplish the work-related purpose. To show that the standard is reasonably necessary, employers must show that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Question #5: What about privacy?

This is a complex area of law, but at the most fundamental level, employers are permitted to ask employees for personal health information and do so all the time. There is no blanket "privacy right" in Ontario permitting an individual to conceal their health information from their employer without repercussions. Private sector, provincially regulated employers in Ontario are not directly subject to privacy legislation that would impact how health information of employees (i.e. vaccine status) can be collected or used. Having said that, employers ought to be mindful regarding the use and storage of sensitive employee health information and must abide by common law privacy principles and, where applicable, privacy legislation.

Question #6: What about the Charter?

Commonly misunderstood, Canada's Charter of Rights and Freedoms applies to the government only. It does not afford citizens any rights as against their employer (unless their employer is the government).

Even in situations where the Charter can be invoked, it is unlikely that a reasonable workplace vaccine policy would constitute a breach of an individual's charter rights that was not permitted under the Charter as being "justified in a free and democratic society." This is particularly so given that courts in Ontario have had no difficulty recognizing the seriousness of the pandemic and have repeatedly taken judicial notice of the same. Additionally, in a number decisions, judges have taken judicial notice regarding the efficacy, safety and importance of vaccines.

Question #7: I am unionized - does that change anything?

You should speak with your union about whether an employer’s vaccine policy is consistent with your Collective Agreement.

Mandatory vaccine policies have been addressed in a number of arbitration decisions in the labour union context. The majority of those decisions resulted in the upholding of workplace influenza vaccine mandates in hospitals and nursing homes. These cases largely focus on whether the vaccine mandates were a reasonable exercise of management rights and were in compliance with specific collective agreements. The cases are instructive outside the union context because they demonstrate the willingness of decision-makers to uphold vaccine mandates after weighing the rights of the individual against the public interest.

The handful of arbitration decisions that have struck down workplace vaccine mandates have done so almost entirely on the basis of the employer taking unreasonable action in the face of a lack of scientific evidence to support the efficacy of the specific policies in question. This would be an easy point of distinction given the global scientific consensus with respect to COVID-19 and available vaccines.

Question #8: What happens if I refuse to comply with my employer's mandatory vaccine policy?

An employee can be dismissed for refusing to comply with an employer's workplace vaccine mandate, with the exception of those employees who are legitimately exempt under applicable human rights legislation.

The more difficult question is whether those employees can be dismissed with just cause, or whether the employer will have to provide reasonable notice.

Insubordination and intentionally refusing to comply with an employer's direction can constitute just cause, particularly where repeated warnings are provided in advance and where the infraction is serious.

Also, an employee's intentional refusal to follow an employer’s health and safety guidelines can constitute just cause for dismissal.

Just cause dismissal means an employee can be fired without any notice or compensation.

Courts have not yet provided clear and generalizable direction on the question of whether employees who refuse to comply with a vaccine mandate will be owed notice or compensation before being terminated. We expect significant developments in this area over the coming months and years.

So... What should I do?

If you are an employee and you think that a human rights exemption legitimately applies to you, you should let your employer know, provide supporting medical documentation if applicable, and consider speaking with a lawyer to obtain legal advice.

If you are hesitant about the vaccines, you should speak with your family doctor for professional advice about vaccines. You may also want to check out this Public Health Ontario website and this Health Canada website for more information.

If you just don't want to get the vaccine for reasons which are not protected by law, you can try asking your employer if there is a way that you can continue to work safely without being a risk to others – like working alone in a private room, or working from home. But if your employer chooses not to make an exception for you, you risk being fired from your job, potentially without any notice or compensation.

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