Your employer requires you to be vaccinated: can you refuse?

Major multinational companies such as Wal-Mart, Walt Disney, Netflix and Alphabet are developing workplace vaccination requirements for employees. The list of organizations requiring proof of vaccination is also growing across Canada. They include universities, hospitals, law firms and more. Employees who refuse to get vaccinated risk losing their jobs.

Is such action legal?

Canadian businesses are pushing for a proof-of-worker vaccination system, but politicians have so far ignored the issue. Labour law experts believe that companies need to seriously weigh the pros and cons and think through a sound workplace vaccination policy. Nainesh Kotak, founder of the law firm, notes that company bosses used to be very cautious about requiring masks in the workplace, but now they are being more bold. Kotak is convinced that in certain areas, vaccinating employees is a must.

Alex Lucifero, a Toronto labour law lawyer, believes that one vaccination policy cannot be applied to all companies because it all depends on the specific circumstances. For example, it depends on the industry or whether employees are unionized.

Can employers require employees to be vaccinated? Adam Savallo, an Ontario labour law lawyer in Hamilton, Ontario, answers that there are two sides to this issue. Employers cannot force an employee to be vaccinated, but they have the right to ask for proof of vaccination because they have an obligation to provide a healthy and safe workplace environment.

Can I be fired for refusing vaccinations?

Refusal to vaccinate will be considered non-compliance with the employer's vaccination orders and therefore the employee may be dismissed. If the employee refuses for medical or religious reasons, the dismissal will be considered discrimination under the human rights code. Nevertheless, in Canada, there is a so-called "dismissal without cause" and the company can take advantage of it.

Are there laws protecting the employee?

Some employees refuse to provide proof of vaccination, arguing that such a requirement violates their confidentiality. Others cite the Charter of Rights and Freedoms. As Toronto labour law lawyer Howard Leavitt points out, Canadian law always prioritizes security over confidentiality. This means that in court, a company will be able to defend its right to administer mandatory vaccinations to employees. The exception is employees who are not vaccinated for religious and medical reasons.

As for the Charter of Rights and Freedoms, as constitutional expert Wayne McKay points out, it applies only to government actions, i.e. it applies to civil servants, but not to employees of private companies. However, according to the lawyers, it will also be difficult for civil servants to defend their position, because there are only three sections of the Charter, which can be used to argue a refusal to be vaccinated.

The section describing the right to life, liberty and security of person does not protect an individual's economic interests and desire to keep a job. The section on protection against discrimination is also likely to fail because the employer is not ignoring anyone's interests. As Brian Thomas, a professor at the Centre for Health Law, Policy and Ethics at the University of Ottawa, pointed out, the law would side with the company because an unvaccinated person poses a danger to themselves and others by going to work. Finally, the last section to invoke is religious exemption or freedom of conscience. But it will be extremely difficult to prove in court that refusing to vaccinate is freedom of conscience.