Can my employer place me on unpaid leave because I am unvaccinated?

The answer to this question will depend on the nature of the work and inherent risk factors in the workplace setting. 

The employer has a duty under occupational health and safety legislation to ensure the safety of its workers.  It has a legal duty to take every precaution reasonable in the circumstances for the protection of its employees. Likewise, the employee has a duty to follow safety protocols for the protection of themselves and their co-workers.  These statutory duties are not optional.  

That said, these duties have to be weighed against the employee’s right to make choices about their bodies and their health.  

Mandatory vaccination policies during the COVID-19 pandemic have, for the most part, been upheld by labour arbitrators in unionized workplaces as reasonable workplace policies, particularly in high-risk settings like long-term care homes or hospitals.  

That said, for non-union workers in low-risk settings, who can safely perform work without a vaccine or mandatory rule that requires vaccination or otherwise, if the employee is forced to take a prolonged leave without pay, this may amount to a constructive dismissal, entitling the employee to a severance package.  

This is highly context driven. For instance, if the employee is a remote worker and may only visit the workplace premises infrequently for team meetings, a mandatory vaccination rule may be an unreasonable measure, particularly if there are less intrusive safety measures that may be implemented for the protection of employees. 

If you are experiencing a situation in which you are facing termination or unpaid leave because you are unvaccinated, it is prudent to obtain legal advice about your rights.