Unvaccinated Employees and Mandatory Vaccination
Both employers and employees are asking questions related to mandatory vaccinations and consequences for employees who don’t get them. Here we run through some of those FAQs!
Q: If vaccinations are deemed to be “mandatory” for workers, are there any legal exemptions?
A: Yes, in some cases there will be legal exceptions to a job requirement that employees be vaccinated. These exceptions come from the Ontario Human Rights Code (the “Code”), which prohibits discrimination in employment based on protected grounds. The protected grounds likely to be engaged with respect to a vaccination requirement are disability and creed. If the exemption is based on a medical reason, it will fall under disability. Religious reasons will fall under creed.
Q: Practically, what does it mean if someone is entitled to an exemption from a workplace mandatory vaccination policy?
A: This will mean that the employee is entitled to be accommodated by the employer, up to the point of undue hardship. Accommodations will vary, as will the undue hardship threshold. Employees are not entitled to the accommodation of their choice and must participate fully with the employer in determining what’s appropriate.
An office worker entitled to an exemption can likely be accommodated by continuing to work from home. An office custodian may not be able to come into work at all and might be accommodated with an unpaid leave of absence. They may not be terminated, but the employer may not be able to have them work safely, given their restriction.
Q: What kind of medical exemptions are permitted?
A: While we aren’t doctors, we understand that the COVID-19 vaccine is widely accepted to be safe and recommended for almost everyone. Therefore true exemptions based on disability/medical reasons are likely to be very rare and typically limited to individuals who:
- have a confirmed severe allergy or anaphylaxis to a previous dose of a COVID-19 vaccine or to any of its components that cannot be mitigated; or
- have a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine.
Q: What kind of evidence of medical exemption is required?
A: In any case, when an exemption is requested, an employer has a right to require the employee to provide medical evidence to substantiate their claim. Typically, this will be a letter from the employee’s doctor setting out that for medical reasons related to a disability the employee cannot safely take the COVID-19 vaccine. In some circumstances, it may be appropriate to have the employee assessed by an independent doctor, hired by the employer.
In addition to medical evidence, we suggest employers use a Medical Exemption Form to track any such requests, such as the one available in our firm’s reopening bundle.
Q: What is an exemption based on creed?
A: An exemption based on “creed” will be an exemption based on religious beliefs and practices.
As per the Ontario Human Rights Commission Policy on preventing discrimination based on creed, the following characteristics are relevant when considering if a belief system is a creed under the Code.
A creed:
- Is sincerely, freely and deeply held
- Is integrally linked to a person’s identity, self-definition and fulfilment
- Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
- Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
- Has some “nexus” or connection to an organization or community that professes a shared system of belief.
As far as we are aware, there are no clear exemptions based on creed.
Q: What kind of evidence of creed exemption is required?
A: In any case, when an exemption is requested, an employer has a right to require the employee to provide substantiating evidence. This is going to vary somewhat in the case of an exemption based on creed, but could include a letter from a religious community leader, evidence of participation and membership in the religious community, educational materials on the belief system etc. Individuals who adopt new creeds in order to attempt to claim this exemption may not be able to substantiate their exemption based on creed.
Q: If an employee refuses to be vaccinated and is not entitled to any exemption, can they be disciplined?
A: An employee who refuses to be vaccinated but has no legitimate Code-related exemption has no entitlement to accommodations in employment. They have no protection from discrimination under the Code and can be disciplined up to termination of employment for cause, if reasonable in the circumstances.
The appropriateness of discipline and terminations will depend on the context. In some circumstances, an employee who is unvaccinated may be able to continue to work remotely or may submit to additional safety measures when coming into the office. For example, an unvaccinated employee may be required to submit to additional testing if they come into the office. While this is something that an employee could suggest, it is not something the employer has to agree to. However, if the suggestion is reasonable, the employer may not have sufficient grounds to terminate the employee for cause.
Most employees have no right to their jobs, and absent discriminatory reasons, employees can be terminated on notice for any reason.
Employees could be terminated for cause if their refusal to be vaccinated means that they cannot do their job safely and that the employment relationship cannot viably continue.
If you have questions specific to your situation, get in touch for a consultation. We also invite employers to check out our re-opening toolkit: OMG The Office is Open!!! This DIY toolkit includes everything employers need to get back into the office safely, while meeting their company’s legal obligations: 20 Employment Law Resources, including 4 Core Legal Docs that all employers should have on hand at all times! This amazing toolkit is available for a deeply discounted price until the end of October.
