HOT TOPIC ALERT – It has become generally accepted in the Province of Ontario, that if you wish to return to the life you enjoyed pre-COVID-19 Pandemic, you will need to obtain your 2-dose COVID-19 Vax. That means if you wish to eat in a restaurant, attend a concert or get back into an in-person fitness class, or join your children at their sporting events, proof of vaccination will be a requirement to attend and/or participate – that is unless you have a medical exemption. Regardless of your personal or political opinion on this issue, vaccination provides peace of mind to the other participants and reduces your risks of hospitalization or death if you are exposed to the COVID-19 virus.
That said, we receive countless inquiries from employees whose employer is requiring the employee to provide proof of vaccination and has set deadlines for complying with that policy. This blog is intended to provide you with information, in determining whether this is a fight you wish to take on. Ask yourself: Am I prepared to risk my employment over my choice to remain unvaccinated?
First, according to the Human Rights Commission, your position on vaccination and refusing to be vaccinated is not necessarily a human rights issue and may not be a protected ground. COVID-19 vaccination requirements are generally permissible. Please see: http://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-vaccine-mandates-and-proof-vaccine-certificates While the decision to become vaccinated remains voluntary, the Commission states that the obligation to provide proof of vaccination is valid, so long as those persons who are protected under the Human Rights Code are reasonably accommodated (Examples: a valid medical exemption or available COVID testing). As noted in the policy, the Commission notes that receiving a vaccination is a personal choice, and so is choosing to not receive a vaccination. The choice to not be vaccinated is not a ‘creed’ protected ground under the Code. To be clear, the Commission’s policies, are not legally binding and we have yet to see how this issue will be adjudicated by the Human Rights Tribunal of Ontario.
Ensuring Health and Safety of Employees and Clients
Specifically, in relation to employment, the same line of thinking applies. Employers have a general duty to ensure the health and safety of their employees in the workplace. The employer requires you to provide proof of vaccination to continue to work or to return to the workplace –even if you are working exclusively from home. Vaccination is not only about an individual employee’s protection but also ensures other employees, clients, possibly the general public who you may be in contact with during the course of your employment, are also not exposed to a ‘hazard’ that being the COVID-19 virus. The most effective way to limit exposure is to avoid contact with others who may potentially expose you to the virus, the next best level of protection is vaccination and the practicing of public health guidelines such as the use of PPE, masking, and distancing.
Loss of EI Benefits
Neither the OHSA or the ESA directly address vaccination status or requirements, or the employer’s enforcement of vaccination policies for their workers. The Employment and Social Development Canada (ESDC) has also recently stated that employees who are terminated for failure to comply with a vaccination policy or who refuse to provide their employer with their vaccination status may be “disqualified” or “disentitled” from receiving benefits if they have been suspended or dismissed as a result of their own misconduct. While all claims are adjudicated based on individual circumstances, employees not complying with a mandatory vaccination policy would typically not be eligible to receive regular EI benefits, according to ESDC’s current policy.
If your employer has implemented a vaccination policy and you choose not to comply, likely this does not amount to a dismissal for cause. Being dishonest about your vaccination may also lead to a dismissal or your employment. If you are terminated from your employment for failing to follow a vaccine mandate, you may still be entitled to reasonable notice; cases are often based on individual circumstances. It is important that you obtain advice from an experienced employment lawyer. If you still have questions, please contact our office at Chapman Law.