Updated: Feb 11, 2021
Covid-19 pandemic reflected on all areas of our life. As an employment paralegal, I am currently getting increasing numbers of calls from my customers who asked for clarification on how they should behave with regards to vaccination. Whether the vaccination is mandatory and what they should do to keep everyone safe.
As a general rule, the employer can not require an employee to undergo medical treatment as a condition for a continuation of the employment. Any such demand would be considered illegal. In some limited circumstances, the employer can demand an employee to undergo medical observation but has no right to dictate employee whether he/she shall receive or refuse specific treatment. The vaccination requires the consent of the person, and such consent shall be informed and can not be forced by anyone.
On the other hand, there is an essential obligation under the Occupational Health and Safety Act, which requires employers to maintain a safe work environment. Moreover, this Act gives a worker the right to refuse work that he or she believes is unsafe to himself/ herself or another worker. The Employment Standards Act says that the employer can not discipline a worker for refusal of an unsafe work environment. That is a place where the great potential for disputes exists.
These two conflicting rules may increase two types of complaints. On the one side, some employees will claim an unsafe work environment while others will point that employer can not direct them on what to do with their body and health. Most likely, this problem would be resolved by the court, but in the meantime, the business owner would be the one who suffers the most.
The increase of wrongful termination cases in the nearest future is obvious. The Public policy may require the business to allow to work only those workers who are “in compliance” and got the vaccine shot. On the other hand, there is no provision in statute or common law that allows terminating employment in cases where a person refuses to be vaccinated.
The employer can not terminate an employee, and if he does, it will expose such business to a wide range of damages. Most employment lawyers in Toronto saying that vast majority of the employment contracts are poorly drafted or may become unenforceable, and this exposes businesses to severe damages award in case of the court proceeding.
It is also important to understand that there is a potential human rights violation case the employer may receive if he will insist on vaccination. Some employees may qualify for an immunization exemption due to various medical reasons or religious believes. If that is the case, the business owner may expose himself to an expensive adventure.
It is recommended to get a legal advise before you take any action, as every situation is different. Some of employers may think that they will not require a cause to terminate someone, but such “technical” termination without cause may be costly. If the employee believes he has been terminated due to refusal to be vaccinated, that may be a good reason to assert a wrongful dismissal.
At SAV Paralegal Services we strive to provide our clients with exceptional service. If you have questions or need further information on how to proceed please contact us and get legal advice you can count on.