Can I be Fired for Cause if I Refuse Vaccination?
As the Province continues its push to encourage vaccination among the general public, the government has strongly signaled to the private sector that employers do the same. Companies across the province have been and are continuing to implement vaccine policies. With the recent news of the Omicron variant and increasing case numbers, there is significant pressure to take action.
Employer vaccine policies vary from incentives to encourage vaccination on one end, to threats of termination for just cause on the other.
What is Just Cause for Dismissal?
Under the common law, an employer has ‘just cause’ to summarily dismiss an employee if s/he has engaged in culpable misconduct or serious neglect of duty that amounts to a repudiation of the employment relationship. Dismissal for cause is generally considered a last resort measure and relates to misconduct of neglect of duty that is very serious in nature. Examples include gross negligence, dishonesty, theft, fraud, or sexual misconduct. For cause terminations should generally be treated as a last resort measure.
If an employer has just cause to terminate the employment relationship, the employer is not required to provide advance notice of termination or payment in lieu. This can also mean no access to employment insurance (“EI”) benefits.
Can an Employer Terminate For Just Cause If an Employee is Unvaccinated?
An employer cannot terminate an employee who refuses to take the vaccine for reasons that are protected under the Ontario Human Right Code, for example, for medical or religious reasons, unless continuing the employment relationship would amount to “undue hardship”. For those who are unable to take the vaccine for these reasons, they may be required to take alternative safety measures, for example, rapid antigen testing, masking, or work-from-home if available.
Absent a valid exemption, some employers have taken a stricter approach by threatening unvaccinated employees with termination for cause. In their view it is a simple choice, get vaccinated or find somewhere else to work. It remains to be seen whether the courts will allow employers to terminate for cause for vaccination refusal.
There has been recent indication that the courts will look favorably upon reasonable vaccine mandates. In the recent decision Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2021 ONSC 7658 (CanLII), the court refused to grant an injunction to stop the TTC from enforcing its vaccination policy. Under the TTC’s policy, unvaccinated employees could face discipline, including unpaid suspension, and termination from employment. In its reasons, the Court commented in obiter as follows:
“The harm which the employees may suffer is being placed on unpaid leave, or being terminated from employment, if they remain unvaccinated. They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other.”
Exceptionally, in British Columbia, the Province passed a COVID-19 vaccination regulation stipulating that public service employees who are terminated under the Province’s mandatory COVID-19 vaccination policy will be deemed to be “dismissed for just cause” . Ontario has not gone this far, but the provincial government has taken a stance in support of vaccination policies and has strongly encouraged employers to get their workforce vaccinated.
Key Takeaways
There are compelling health and safety reasons in favour of vaccine mandates in the workplace. However, some aspects of employer vaccine policies may be problematic. Specifically, policies that impose discipline or discharge for unvaccinated employees may be subject to legal challenge.
If an employer terminates an employee citing cause, this may amount to a wrongful dismissal or unjust discharge. In our view, refusal to get vaccinated is unlikely to rise to the level of cause-worthy conduct. Consequently, (non-union) employees may be entitled reasonable advance notice of termination or payment in lieu (a severance package). Those who are unionized may be eligible for a variety of remedies under the collective agreement, including reinstatement and compensation for loss of earnings.
If you are facing termination for refusing vaccination, contact JPak Employment Lawyers to discuss your rights, duties and options.