Can non-unionized employees be fired for refusing the COVID-19 vaccine?

Over the past few weeks, dozens of companies and organizations have announced mandatory vaccine policies for their employees.

Some of these businesses, like Air Canada, are in industries that must follow a government order to require that employees be vaccinated. Others, like Toronto hospital group University Health Network (UHN), are not covered by that order, but have still announced plans to fire employees who do not get vaccinated.

Without a mandate from either the provincial or federal government, however, vaccination policies could potentially create legal problems for both employers and employees.

Here are a few questions that my law firm has gotten regarding vaccination status and employment.

Can my employer mandate COVID-19 vaccinations?

Employers in Canada do not have the automatic right to mandate vaccinations for non-unionized employees.

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A company’s decision to require vaccinations may be considered legal, however, if the government (provincial or federal) that oversees the workplace makes vaccination mandatory for that sector of employment.

The federal government recently announced its intention to mandate vaccinations for federally regulated employees in the transportation sector by the end of October. This would suggest that companies like Air Canada are within their rights to enforce the mandate with non-unionized staff and to fire those who fail to get vaccinated.

The government also called on other federally regulated industries, such as banking, to require vaccinations, but said it wouldn’t enforce a mandate outside the transportation sector. Still, many of Canada’s largest banks responded by introducing vaccine mandates.

For companies that don’t fall under provincial or federal mandates, a vaccine requirement with no alternatives, such as rapid testing before coming to work, may be considered as discrimination on the basis of perceived disability.

READ MORE: The top 5 termination myths — and what you need to know about being fired from a job

Can I be fired for refusing a COVID-19 vaccine?

If you are a non-unionized employee, and there is no government legislation or mandate in place addressing your particular industry, your employer may not be able to legally fire you for refusing to get vaccinated.

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That doesn’t necessarily stop them from letting you go. But you may be owed damages if that happens.

Vaccination against COVID-19 was likely not a condition of employment, either verbally or in an employment contract, when you were first hired. An employer can’t implement such a policy mid-employment and fire those who refuse to comply for cause.

Employers whose vaccine policies are not backed by government mandate may risk potential wrongful dismissal and human rights claims if they fire workers who refuse to get the vaccine.

Do I get severance if I am fired for refusing to vaccinate?

Non-unionized employees who are fired or let go for rejecting a vaccine are owed a full and fair severance package.

The employment lawyers at my firm negotiate severance packages daily on behalf of non-unionized employees for as much as 24 months’ pay. The size of the package depends on many factors unique to each person, such as the person’s age, time with the company, salary and difficulty in finding new work.

READ MORE: How much severance pay are you owed in Alberta? 10 of the most common questions

There are many common misconceptions about termination packages. Before you sign off on any package or offer, talk to my team to get the facts on severance.

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Can my employer put me on an unpaid leave of absence if I don’t get vaccinated?

Some employers have decided to place unvaccinated workers on unpaid leave. But your employer does not have the automatic right to do this.

Putting you on unpaid leave could be considered a significant change to your job. Any major change to your employment, such as a pay cut, demotion or temporary layoff, can be treated as a constructive dismissal. Your employer has effectively fired you, and you can pursue full severance pay.

Such a policy may also be in contravention of human rights legislation. An experienced employment law team can help determine this.

READ MORE: HBC employee’s ‘status change’ a lesson in constructive dismissals: employment lawyer

Can your employer apply a vaccine mandate? Check with this quick and easy tool developed by Samfiru Tumarkin LLP.

Is your employer mandating vaccinations for all employees? Not sure what your employment rights are?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta or British Columbia. Get the advice you need — and the compensation you deserve.

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Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.

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