I have been spending considerable time over the last month educating clients, industry groups and even, this week, the Alberta section of the Canadian Bar Association. The biggest question on everyone’s mind is whether employers, who perform what they view as their public duty and adopt mandatory vaccination policies, can then fire employees who refuse to vaccinate or refuse to confirm that they have been vaccinated, for cause, without severance.
Of course, there are exemptions for creed and medical disability but those exceptions are extraordinarily narrow and few Canadians qualify.
Creed relates to an existing religion that prohibits vaccinations as a tenet. There is no significant religion with this prescription. Indeed, there are few such religions and, particularly in Canada, very few adherents.
Legitimate medical exemptions are limited largely to inflammation of the heart or a very severe allergic reaction to one of the components of the vaccine. Minor irritation, soreness or minor allergic reaction, etc. does not qualify. There are few Canadian employees to whom these exemptions apply.
But to the point, assuming these exemptions do not apply, can employers fire employees who refuse to be vaccinated for cause without severance?
I cannot predict the judicial or arbitral answer with certainty as a first judicial or arbitral decision, let alone its inevitable appeal, is far off.
But I strongly believe the answer to be yes for many reasons. This column, uncharacteristically, is therefore somewhat of a legal brief.
The first reason why I believe refusing to vaccinate will be cause for dismissal is that COVID-19 presents a near existential crisis. It crippled our economy, severely imperilled our workforce for close to 18 months, killed millions, rendered even more permanently incapacitated and lead to a severe crisis in mental health and isolation.
The second reason is that governments, chief medical officers across the land and almost the entire medical community have strongly encouraged vaccinations as the gold medal standard of relief from the pandemic.
COVID-19 has become a pandemic of the unvaccinated, particularly poignant since the vast majority of Canadians are now vaccinated. Although the odd vaccinated person contracts the virus, the numbers are insignificant relative to the risk for those who are not. Vaccination largely provides immunity from the virus but, to an even greater extent, the health impact on the vaccinated who do contract it is usually minimal compared to the impact on the unvaccinated.
Employers are required at law, both by legislation such as the Occupational Health & Safety Acts in each province, and by the common law, to provide safe workplaces and physically protect their employees and, for that matter, anyone entering their establishment. This is mirrored by legislation in most provinces, such as Ontario’s Emergency Management and Civil Protection Act, providing fines of up to $10,000,000 and a year in jail if an employer is reckless with their employees’ health during COVID-19.
It is clear, in light of the exhortations from governments and others, the impact of the pandemic and the law requiring employers to protect employee safety, that Canadian public policy favours compulsory workplace vaccination. That is important because, in determining evolving law, courts look to public policy. I also find it highly unlikely that courts will penalize employers by making them pay wrongful dismissal damages for performing their public duty and enacting mandatory vaccination policies as governments have urged them to do.
Courts would also, as a matter of policy, not wish to incentivize employees to refuse to either vaccinate or disclose that they have been vaccinated in order to be fired from jobs they dislike and receive wrongful dismissal awards.
To the extent that we have already had cases, mostly before arbitrators, respecting other issues surrounding COVID-19, such as workplace testing, they have sided with employers who have enacted rules to create a safe workplace against union objection.
Finally, in arriving at my view that refusing to be vaccinated is cause for discharge when the employer mandates it, I note a 2020 case before Ontario Superior Court Justice Edward Morgan, between the Ontario Nurses Association and Eatonville/Henley Place, involving long-term care facilities. In that decision, he said the following:
“An important recommendation of the Commission of Inquiry chaired by Justice Archie Campbell in the wake of the SARS outbreak of 2003 – an outbreak of a virus related to COVID-19 – is that the precautionary principle is to be put into action in order to prevent unnecessary illness and death. As explained by Justice Campbell, this principle applies where health and safety are threatened even if it cannot be established with scientific certainty that there is a cause and effect relationship between the activity and the harm. The entire point is to take precautions against the as yet unknown.”
This obviously applies to the dismissal of employees who refuse to be vaccinated when their employers require it. As this decision made clear, employers are required “to take precautions against the as yet unknown” “where health and safety are threatened” “to prevent unnecessary illness and health.” If employers do so, the law should and will likely immunize them from the resultant dismissal actions.
Now, of course, this will only apply to those employees who work in close proximity to others. If employees work from home, there is no legitimate basis to require their vaccination. But the employer has the right to require employees to perform their work from the workplace and employees cannot require accommodation for their refusal to vaccinate by requesting to be permitted to work remotely. But for those employees who work around others, the employer can enact mandatory vaccination policies and, in my view, for all of these reasons, terminate for cause those who refuse.
BY HOWARD LEVITT
Got a question about employment law during COVID-19? Write to Howard at email@example.com.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.
THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-why-the-unvaccinated-will-never-win-in-court?video_autoplay=true