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A close look at ‘mandatory’ vaccination policies | Stuart Rudner

Monday, September 20, 2021 @ 11:39 AM | By Stuart Rudner


Stuart Rudner %>
Stuart Rudner
It feels like not a day goes by without another headline announcing that more employers have adopted “mandatory vaccination” policies. The public will be forgiven for concluding that virtually every major employer is requiring that all employees be vaccinated or they will lose their job. Yet if you read the details of most of these policies, they are not mandatory at all.

Mandatory vaccination policies are mostly vaccination policies

In fact, most of the employers, both public and private, have put vaccination policies in place which encourage, even strongly encourage, their employees to be vaccinated, but stop short of saying that employees who don’t will be fired. To begin with, they all exempt employees who are unable to be vaccinated for legitimate medical or religious reasons, since those employees will be protected by human rights legislation. Firing, or otherwise penalizing them would be a breach of their human rights giving rise to liability.

Furthermore, most of these policies provide that employees who choose not to be vaccinated will undergo some form of education intended to explain the benefits of vaccination, in the hope that will convince them to be vaccinated. However, if an employee still chooses not to, most of these policies are silent on the consequences. The City of Toronto is a perfect example; despite headlines such as this one from CBC — Tory announces city employees must be vaccinated for COVID-19 by Oct. 30 — the reality is that there has been no decision on what will happen to employees that choose not to be vaccinated after receiving education on the benefits of doing so, as Mayor John Tory acknowledges in the very same article.

It is true that some employers have been bolder, proclaiming that employees who choose not to be vaccinated (as opposed to those who cannot) will lose their jobs. Even in those cases, it is unclear whether they would be dismissed with cause or would receive a severance package.

Can you fire someone if they refuse to be vaccinated?

In most cases, someone can be dismissed for any reason, or no reason at all, but they would be entitled to severance unless there is just cause for dismissal. That raises perhaps the most legally intriguing question: would a refusal to be vaccinated constitute just cause for dismissal?

There is no law which specifically says that a refusal to be vaccinated for COVID-19 is, or is not, just cause for dismissal. As is often the case, the likely answer is that it depends. While many people would like our laws to be simpler, the fact is that it is virtually impossible; what applies in one situation does not and should not apply in another. I have spent a lot of time studying and discussing the law of summary dismissal (including writing and annually updating my book, You’re Fired! Just Cause for Dismissal in Canada), and one thing I have observed is that courts tend to be deferential to safety-related policies, all else being equal.

Vaccination policies are intended to ensure health and safety. An employee who refuses to abide by a policy which mandates vaccination may be guilty of insubordination, which is the failure to follow a rule or direction, but only if the rule or direction is reasonable. So that is the crux of the matter: Would such a rule be reasonable?

That is where the circumstances become of paramount importance. After all, it would be hard to argue that a mandatory vaccination policy is reasonable for a remote worker who does not interact with customers or colleagues. That is why we often caution our clients against “one size fits all” policies that may not be justifiable; it is tempting to say that “anyone working in a medical facility must be vaccinated,” but there is a difference between the front-line workers interacting with patients all day and executives working in an office who may not create the same health and safety risks.

As I have often explained, whether or not just cause for dismissal exists depends on many factors and is not based solely on the misconduct in question. For example, if two employees engage in the same conduct, but one is a long-serving employee with a clean disciplinary record and the other is a recent hire who has already been disciplined repeatedly, it is entirely possible that a court will find that the first employee deserves a second chance while the second employee deserves to be fired.

I am often challenged when I say that there are no absolute rules. The most common objection I get is “surely an employee can be fired for stealing.” I respond with “not necessarily”; there is a big difference between a CFO embezzling $10 million and a receptionist taking a pencil home so his daughter can do her homework, although both are technically “stealing.”

So, would a refusal to be vaccinated in the face of a (true) mandatory vaccination policy constitute just cause for dismissal? The policy would have to clearly establish expectations and consequences (i.e. make it clear that an employee could be fired for refusing), and the employer would have to be able to show that the policy is reasonable in the context of the workplace and that particular worker/role. Furthermore, employees who cannot be vaccinated for medical or genuine religious reasons would have to be treated differently.

Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 416-864-8500 or stuart@rudnerlaw.ca.

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