Unvaccinated employees could in fact lose their jobs

July 30th, 2021 by Michael Hackl

This article was first posted to rabble.ca.

Earlier this year, I wrote a Pro Bono column on how people felt that COVID-19 restrictions were infringing on their rights and freedoms. At the risk of being seen as a “one trick pony,” I wanted to address another aspect of how COVID might be seen as infringing on our personal freedoms.

While the previous column considered how COVID restrictions might shine a light on the rights we believe are guaranteed under the Charter of Rights and Freedoms, the issue that has captured my interest for this column considers whether a private employer can require that its employees be vaccinated, as one London, Ontario law firm is seeking to do.

As noted in my prior column, the Charter of Rights and Freedoms governs the relationship between private persons and government. It typically does not affect dealings that are solely between private parties.

As a result, while courts have consistently held that a person’s “rights to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” under section 7 of the Charter include the right to refuse medical treatment, that would not include protection from a private sector employer insisting that an employee get vaccinated against COVID‑19 (or get any other vaccination, for that matter).

In addition, many cases have held that even as between private parties (where the rights granted under the Charter do not apply), people are entitled to refuse medical treatment.

For example, in cases where medical professionals provide treatment to a person who does not have the capacity to grant or withhold consent at that time, the medical professional risks being found liable for medical battery if there is a reason to believe the patient would refuse that treatment (such as a case where an unconscious patient was administered a blood transfusion that the doctor believed was necessary to save her life, despite the patient carrying a card requesting that she not be administered any blood transfusions because of her religious beliefs).

However, other cases have made it clear that while a person has the right to refuse medical treatment, a decision to refuse medical treatment may have consequences. For example, in one case, a person in a car accident suffered serious back injuries, but refused to have corrective surgery. The court found that while the person was at liberty to refuse the corrective surgery, in the circumstances the refusal to have the surgery was unreasonable, and the damages they received were significantly reduced because of their decision not to have the surgery. In another case, an employee was terminated because of absenteeism caused by a serious alcohol problem; after the employee had repeatedly promised to seek treatment for his alcohol addiction but failed to do so, the employer terminated his employment.

While that employer was justified in terminating the employee’s employment because of their repeated failure to seek treatment for their alcohol addiction, that addiction caused absenteeism that affected the employee’s work performance.

What about a situation where the refusal to accept medical treatment did not affect their job performance? While there might be situations where the nature of an employee’s work meant that they could not perform the essential duties of their job if they were not vaccinated, that is probably not the case for many other employees. Given that many businesses continued to operate through part or all of the pandemic with measures such as maintaining distances between employees, wearing masks, or increased cleaning protocols, there are probably a lot of businesses where an employee could perform their essential job duties even if they were not vaccinated.

While an employer in that situation may not be justified in terminating an employee for cause, employers can usually terminate a non‑unionized employee’s employment even if there is no legal cause for doing so, but the employer might be liable for damages for wrongful dismissal.

The amount of any damages will depend on a number of factors, such as whether the employment contract was for a fixed term or an indefinite term, whether the contract contained provisions for determining the notice that had to be given to terminated the contract, and the length of service, nature of the position, and the age of the employee.

In other words, the employer may well be able to terminate a non‑unionized employee who refused to get vaccinated, as long as they paid the employee damages that could range from a few weeks to a few years worth of pay.

However, if the employee’s refusal for getting vaccinated was based on a ground protected under the applicable human rights legislation (such as the employee’s religion or creed, or a medical condition that prevented them from getting vaccinated), and the employer terminated them because they would not get vaccinated, that would likely be a violation of the employee’s human rights and could result in an order that the employer reinstate the employee.

In the end, this question, like many other questions individuals, organizations, and governments have faced during the pandemic, presents a number of thorny issues that do not have an easy, cut and dried answer.

The fact remains that it is possible some employees could lose their jobs over their resistance to the COVID-19 vaccine. Whether employers are willing to risk the cost of damages, however, is another question — one that could very well come down to whether the public is willing to frequent businesses with unvaccinated staff.

Filed in: Employment Law, Human Rights, Litigation

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