As the Ontario government implements vaccination mandates, particularly in the health sector, employers continue to question the legality of requiring their employees who remain hesitant to get the vaccine and whether and how to terminate employees who refuse.
In December, Tanya Walker was interviewed to speak about the validity of mandatory vaccination policies and their impact on employees in the workplace. You can read the articles posted by CTV News here and Global News here.
The Ontario Human Rights Code (the Code)
In general, employers are required to accommodate employees who qualify for exemptions under the Code to the point of undue hardship. If an employer proceeds to terminate an employee entitled to protections for failing to be vaccinated, the employer may be liable for discriminating against the employee based on a protected ground under the Code.
According to the Ontario Human Rights Policy Statement, while receiving the COVID-19 vaccine remains voluntary, mandating the vaccine and requiring proof of vaccination to protect people at work is generally permissible. To learn more about human rights legislation as it applies to the COVID-19 vaccine, check out our article, “The Legality of Mandatory Vaccination Policies & Vaccine Mandates.”
Terminating an Employee with or without Cause
If an employee does not qualify for an exemption under the Code, but is refusing to comply with mandatory vaccination policies, an employer may be able to terminate the employee.
Employers can terminate an employee with cause or without cause. Terminating an employee with cause means that the employer has a valid reason for terminating the employee, including where the employee has engaged in serious misconduct that irreparably damages and strikes the heart of the employment relationship such as theft. Employees who are terminated with cause are terminated immediately and are not entitled to statutory or common law entitlements, such as termination pay, notice, or severance.
If the employee challenges the with cause termination, an employer must be able to prove that the employee engaged in such misconduct. This is a very high standard for the employer to meet. Failure to do so could mean that the employer is responsible for paying the employee compensation for wrongfully terminating him or her.
To date, no Judge in Canada has decided that the failure to be partially or fully vaccinated allows the employer to terminate the employee with cause. This could be because it is unlikely that an employee in good faith who is refusing to get the COVID-19 vaccine is significant enough to warrant a with cause termination. Moreover, mandatory vaccination policies are likely to create new terms to the employment contract. If the employee has been with the company for a long time, it is unlikely that violating a new mandatory vaccination policy would be sufficient to strike the heart of the employment contract.
On the other hand, employers generally have a right to terminate any employee at any time without cause. Employers have a wide discretion to require employees to provide proof of vaccination, negative COVID-19 tests, and/or proof of medical exception as a prerequisite to continued employment. If the employee fails to comply, the employer can rightfully terminate the employee without cause. In this situation, the employer must pay the employee his or her entitlements under the ESA or common law, including reasonable notice, termination pay, and/or severance pay.
Can An Employee Claim Constructive Dismissal?
Alternatively, if an employer chooses not to terminate an employee for refusing to comply with a mandatory vaccination policy, employers may be able to place their employees on unpaid leave. On May 29, 2020, the Ontario government introduced Regulation O. Reg. 228/20 (the Regulation), which amends the Employment Standards Act (the ESA) to say that workers who have been temporarily laid off are not actually laid off, but instead are on a job-protected emergency leave known as Infectious Disease Emergency Leave (IDEL).There is no specified limit to the number of days an employee can be on IDEL.
So, what happens if an employee does not want to be put on unpaid leave? Typically, when an employer makes a significant unilateral change to an employment contract, the employee has a right to claim that they have been terminated or constructively dismissed. However, the Regulation provides that employees cannot claim they have been constructively dismissed for being placed on IDEL during the COVID period. Despite this, there has been some conflicting case law on this point.
In Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076, the court determined that the Regulation does not affect an employee’s right to pursue a claim for constructive dismissal under common law. At common law, an employer has no right to lay off an employee, unless the employer and employee makes an agreement to the contrary. Where the employer makes a unilateral decision to lay off the employee, a substantial change to the employee’s employment agreement has occurred and the employee has a right to decide whether to continue to work or accept the contract as and end and claim constructive dismissal. To date this decision has not been appealed.
In Taylor v. Hanley, 2021 ONSC 3135, the court did not follow the decision in Coutinho and instead found that employees are not permitted to claim constructive dismissal under the ESA or the common law doctrine during the COVID period. To date this decision has not been appealed.
If you have specific questions about terminating employees or constructive dismissal claims, please speak with a Walker Law employment lawyer.
This article was written for employers operating in the Province of Ontario for non-unionized employees. This article is not intended to provide legal advice.