Vaccine hesitancy still not just cause to terminate

Refusal to follow vaccination policy not a reason for summary dismissal, but such policies could be constructive dismissal

Vaccine hesitancy still not just cause to terminate

On the heels of widespread vaccination over the past several months, many employers have sought to end remote work. With safety in mind, many of those employers implemented vaccination as a condition of employment, with dismissal as a consequence for refusal.

In the non-union context, employees may allege that a requirement to vaccinate represents a constructive dismissal on the basis that it introduces a substantial term of employment that did not previously exist. Employers dismissing employees without notice for failing to vaccinate will face courts actions for wrongful dismissal.

We haven’t heard from a court on these issues yet. There have, however, been arbitration and court decisions from the unionized world. Non-unionized employers may glean some guidance from these decisions.  

The courts have sounded approval for employer efforts to vaccinate the workforce and mitigate the risk of spreading COVID-19. No decision suggests, however, that an employee’s refusal to vaccinate would be considered misconduct justifying dismissal without notice. Further, none suggest that mandatory vaccination policies would be considered a minor alteration of employment that avoids a finding of constructive dismissal.

Arbitration decisions

The fall of 2021 saw two arbitration decisions in Ontario with respect to mandatory vaccine policies. The legal issue was whether these policies represented a reasonable exercise of the employer’s management rights. To determine that issue, arbitrators applied what is referred to as the “KVP test” that contains six criteria — the most important considering whether or not the employer’s justification for the policy outweighs the alleged harm to employees. The assessment of reasonableness essentially involves a balancing of interests and harm.

In United Food and Commercial Workers Union, Canada, Local 333 and Paragon Protection Limited, the arbitrator considered a mandatory vaccination policy in the context of security services. The employer introduced its policy because its clients required vaccination for anyone accessing its properties. Failing proof of vaccination, the policy mandated a leave of absence or reassignment.

The arbitrator agreed that Paragon’s policy was reasonable, particularly given the employer’s health and safety obligations. The arbitrator held that “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.”

In Paragon, a key factor for the arbitrator was the fact that the employer was required to comply with the policies of its clients in order to provide its services. Further, the collective agreement contemplated a vaccine policy but not termination as a consequence for refusing to comply.

In Electrical Safety Authority and Power Workers Union, the arbitrator found otherwise. Much of the employer’s workforce was remote and its safety and testing policies were effective in avoiding any COVID-19 outbreaks. Unlike the Paragon Protection decision, no significant issue had arisen with respect to accessing third-party facilities.

On the employee side though, mandating vaccination in the absence of a prior established right to do so represented significant harm to employees.

“Disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, is unjust. Employees do not park their individual rights at the door,” said the arbitrator in Electrical Safety Authority.

The Electrical Safety Authority decision indicates that the right of employees to determine their own medical treatments is a significant consideration when evaluating the reasonableness of an employee’s compliance with a mandatory vaccination policy.

A labour lawyer discussed medical exemptions, workplace testing, and vaccine mandates with Canadian HR Reporter.

Court decisions

Matters that arise in a unionized workplace must be heard by an arbitrator. Courts will rarely intervene in a union-related matter, and only where necessary to provide a remedy that an arbitrator cannot provide.

In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, the union (ATU) sought a court injunction to restrain the TTC from enforcing its mandatory vaccine policy.

The TTC’s policy mandated a suspension of employment, followed by termination if employees could not provide proof of vaccination. The injunction request was intended to halt implementation of the policy until an arbitrator could determine whether it was a reasonable exercise of management rights.

Approximately 12 per cent of the TTC’s employees did not disclose their vaccination status. Most, if not all, of those simply refused to vaccinate. The ATU submitted evidence from employees indicating a fear of adverse long-term side effects, which did not quality for an exemption on human rights grounds. The ATU argued that the TTC’s policy coerced vaccination against the will of the refusing employees.  

The arbitrator declined to issue the injunction. First, she was unconvinced that the policy would create harm to members that an arbitrator could not remedy. She disagreed that employees were being forced to vaccinate. Rather, employees were simply making a difficult choice, between remaining unvaccinated or getting the shots and continuing employment. 

Second, the court held that the TTC would suffer greater harm than the employees if the vaccination policy was suspended.

Ultimately, there was no basis for the court to stop the TTC from enforcing its vaccination policy. An arbitrator would determine what, if any, remedy should flow to an employee adversely impacted by the vaccination policy.

Is it just cause?

There is no indication from the above noted decisions, or any other decision to date, that refusing to vaccinate would be considered just cause to terminate an employment relationship. On the other hand, the decisions support the position that the introduction of a mandatory vaccination policy in the employment relationship would be considered a significant change and grounds for constructive dismissal. While mandatory vaccine policies may not compel vaccination against a person’s will, they do require a difficult personal choice to be made — a choice was not required at the outset of the relationship.

Widespread vaccine uptake appears to be the only viable exit strategy out of this pandemic. Employers play a key role in facilitating compliance by requiring employees to make a difficult decision that pits a fundamental personal health decision against ongoing employment. Many employees will choose the former, but it does not mean that the employer’s notice and severance requirements will be negated.

See United Food and Commercial Workers Union, Canada, Local 333 and Paragon Protection Limited (Nov. 9, 2021); Electrical Safety Authority and Power Workers Union, (Nov. 11, 2021); Amalgamated Transit Union, Local 113 et al v. Toronto Transit Commission, 2021 ONSC 7658.

Vaccine mandates aren’t the main reason healthcare workers in Ontario are quitting, according to a survey.

Rishi Bandhu is an employment lawyer in Oakville, Ont. He can be reached at (905) 849-0025 or [email protected].

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