If you lose your job for failing to comply with your employer’s COVID 19 vaccine, will you have any legal recourse? This is the golden question for thousands of Canadian employees, and the available answers aren’t as clear as many would wish. This article is an overview of what we know – and still don’t know – about vaccine-related terminations, and the factors that might influence each case.
THE GENERAL RULE – yes, most employees can be terminated
The general rule is that your employer may terminate your employment for almost any reason, with specific exemptions spelled out by employment standards and human rights legislation.
In the context of mandatory COVID 19 vaccination policies, non-compliant employees are only shielded from termination based on very narrow human rights exemptions. Currently, human rights exemptions exist on medical grounds for employees who (a) have been diagnosed with myocarditis; or (b) who had an allergist or immunologist-confirmed severe allergy or anaphylactic reaction to a previous COVID 19 dose or any of its components.
In theory, employees may be able to argue a creed (i.e., religion) based exemption from mandatory COVID 19 vaccination. However, as of the date of this article, this has not been put to the test. And human rights commissions across the country have made it clear that “personal preferences” or “singular beliefs” against vaccination are not entitled to protection.
THE REAL QUESTION – termination for cause?
The vast majority of employees will not find job protection from human rights legislation. If this is your situation, the biggest question is this: does failing to comply with a COVID 19 vaccine policy amount to “just cause” for termination? In other words, will you be entitled to payment upon termination?
This question has not been decisively answered by Canadian courts. However, depending on the circumstances of your case, the answer may be less important than you think. Different circumstances can weigh heavily on the analysis, while other considerations have little or no weight at all.
Important – whether your employer is subject to a government mandate
In many industries, governments have mandated that employees be vaccinated as a condition of employment. In this situation, the decision to continue employing you is out of your employer’ hands. Failing to comply with a government vaccine mandate is more likely to be cause for termination.
Important – what your employer’s policy says
Your employer will find it difficult to justify your termination if that consequence is not spelled out in the COVID-19 policy. In fact, a policy which fails to specify that non-compliance will result in termination may be read to mean the opposite – that non-compliant employees will keep their jobs.
Important – whether you have been given a clear warning
Most terminations for cause require employers to give very clear and explicit warnings to employees before following through on the termination. Failing to comply with a COVID-19 vaccination policy is no exception to this rule – employees should not be terminated for cause until a very clear warning is given that continued failure to comply with the policy will lead to this result.
Not very important – the wishes of your employer’s clients
Most likely, your employer cannot terminate you for cause based only on the wishes and instructions of its clients. This is the type of business decision that normally leads to an employee being terminated without cause, i.e., with severance pay. The business needs of your employer, generally, are of no assistance in establishing cause for your termination.
Not very important – your right to health privacy
Many employees are familiar with their right to keep their personal health information private. However, this right is not absolute, particularly where it may conflict with your employer’s duty to maintain a safe and healthy workplace. Employees who choose to withhold their vaccination status in contravention of a workplace policy do so at their own peril.
Not very important – “informed consent” or any other general rights-based argument
While the law is still developing in this area, one thing has become clear: employees do not have a free-standing legal right to keep their jobs while refusing to get vaccinated against COVID 19. Laws of general application such as the constitution, informed consent, etc., are of little assistance.
If you have been terminated, laid-off, or severed from your job contact the employment lawyers at Share Lawyers. Our experienced team of Employment Law lawyers can help. We offer free consultations and there are no fees unless we win your case. Find out if you have an Employment Case!
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Taking a medical leave from work is not an easy decision to make. Concerns about providing for yourself and your family and keeping your job may cause you to want to push through your pain, but this won’t make your problems go away. Stopping work is often the smartest decision for your long term health and well-being, and your disability benefits are there to provide you with financial support until you can return to work.
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In this video, we explain the role of a long term disability lawyer and how we can support you when you have been denied your long term disability benefits.