Is that legal to fire an employee for refusing to get the COVID vaccine? Yes. But there are right and wrong ways of terminating an employee, says a local employment lawyer.
Joanna Mullen, a social justice initiative lawyer working at the Legal Clinic of Guelph & Wellington County explains that in Ontario, employers have the ability to create policies connected to providing a safe work environment under Section 25 of the Occupational Health and Safety Act, which states that the ‘employer is required to take every precaution reasonable in the circumstances for the protection of a worker.’
“That's where we see the basis for these vaccine policies coming from. It’s that very specific clause and then the science behind the vaccine and the fact that people who are vaccinated there is evidence to show that they're less likely to transmit the virus and obviously less likely to get seriously ill if we do our best,” said Mullen.
Mullen says when a person is terminated by an employer, the question arises of how the employer complied with the law in providing the correct notice or pay in lieu of notice under the Employment Standards Act and is the worker entitled to additional compensation through a claim for wrongful dismissal.
Employers can legally terminate workers but the termination cannot be discriminatory and can’t be a reprisal.
“And then really, it becomes a question of whether or not workers are entitled to compensation,” said Mullen.
She said if a worker has a legitimate medical condition that prevents them from being vaccinated, it would be discriminatory to terminate them.
“That's something that employers have to make sure that they canvassed to make sure that they're not engaging in discriminatory terminations,” said Mullen.
Mullen said she often sees workers misinformed about how the law works around private corporations and their ability to enact workplace policies versus government actions.
“Some workers think that the Canadian Charter of Rights and Freedoms applies in the private workplace which it doesn't, it only applies against government action,” said Mullen.
She explains that there is a distinct difference between unionized employees who are covered under a collective agreement and non-unionized employees who don't have that protection.
“In terms of the law around these vaccination policies, all of the decisions that we've received so far have to do with the unionized setting, and whether or not these policies are in line with the terms in the collective agreement,” said Mullen.
“So the reality in a non-unionized workplace is that you can really be terminated at the will of the employer, as long as the reasoning isn't discriminatory, or as a reprisal as a punishment for asserting your legal rights.”
Last month, Employment Minister Carla Qualtrough said that people who lose their jobs as a result of not getting vaccinated will not be eligible for employment insurance.
“The reality is that for these workers who are then trying to find new employment, a lot of workplaces are going to implement a criteria of being employed with providing proof of vaccination. So it's a very challenging environment to be in for workers who don't want to be vaccinated,” said Mullen.