Over the past several weeks many Ontario employers have implemented policies setting out COVID-19 vaccination requirements for their staff. While in some sectors, such as long-term care, employee vaccination is now mandatory, in most it is not. Nonetheless, a number of employers, such as the City of Toronto, have opted to implement mandatory vaccination policies for their staff.
The stated rationale for these policies is simple: employers have an obligation to ensure a safe and healthy workplace for all staff and COVID-19 vaccines have proven to be effective in both reducing virus transmission and the risk of severe outcomes. That said, while this rationale is likely to be borne out in many settings (such as where employees are being required to work in close proximity or where vulnerable populations are present – such as in an emergency ward), employers should think carefully before adopting a blanket approach to staff vaccination requirements.
Balancing Vaccination Requirements with Remote Work
For instance, the health and safety rationale may not apply in circumstances where an employee has worked from home throughout the pandemic (i.e. over the past 19 months) and there are no plans to require a return to the physical workplace. In this scenario, the employer may struggle to demonstrate a rational connection between the mandatory requirements of the policy with the reality of the individual’s job. While employers have wide latitude to set policies in the workplace (provide they met minimum legal requirements, such as accommodation under human rights laws), it may prove difficult to justify a requirement for vaccination after-the-fact where the individual has no interaction with the physical workplace.
Practical Considerations for Employee Dismissal and/or Unpaid Leave
The situation may become more complicated where a vaccination policy specifies that an individual’s failure to be fully vaccinated against COVID-19 by a certain date will result in an unpaid leave or termination. Where an employee is dismissed, short of the employer being able to prove wilful misconduct resulting in an irreparable breach of trust, the employer will be required to pay severance. Depending on a number of factors, such as whether the employee in question has a written employment agreement, this obligation may be significant. As such, employers should turn their mind to how they will treat employees that are unwilling to be vaccinated and factor in the potential severance cost as part of the decision-making process.
Where an employer opts to place an employee on an unpaid leave for failing to comply with a mandatory vaccination policy, the employer may likewise be exposed to liability for severance payments. Generally speaking, absent a contractual right to place an employee on an unpaid leave of absence, an employer is prohibited from doing so. By changing the terms of the employment relationship in such a fundamental manner (i.e. preventing an employee from working in exchange for pay), an employer is putting itself at risk of having constructively dismissed the employee and becoming liable for severance.
The legality of whether an unpaid leave, initiated pursuant to the terms of a vaccination policy, will trigger a constructive dismissal remains unclear. At present, unpaid leaves related to COVID-19 are deemed to be Infectious Disease Emergency Leave (“IDEL”) pursuant to a regulation under the Employment Standards Act, 2000 (“ESA”). The period to which IDEL applies has been extended on four occasions by the Ontario government. It is currently scheduled to end on January 1, 2022.
While IDEL effectively operates to prevent an unpaid lay-off being triggered under ESA, it remains unknown whether it has the same effect on a constructive dismissal at common law. To date, two decisions of the Ontario Superior Court of Justice ( Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 and Fogelman v. IFG, 2021 ONSC 4042) have determined that placing an employee on IDEL amounts to a constructive dismissal (triggering a requirement to pay severance) while a third reached the opposite conclusion (Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135).
Best Practices for Ontario Employers
As we have yet to receive guidance from the courts on workplace COVID-19 vaccination policies, employers should proceed with care. As with everything in life, an ounce of prevention is worth a pound of cure. As such, in practical terms, employers should look to implement a vaccination policy that is both fit for purpose and furthers the goal of ensuring workplace health and safety. This may mean creating a nuanced policy, rather than a one-size fits all, taking into consideration issues such as:
Whether workers interact with members of the public;
Whether workers are continuing to operate remotely;
Whether there is a risk of losing talent by mandating vaccination;
Whether the policy will apply on a permanent or interim basis;
Whether employment agreements provide a contractual right to lay-off;
Whether other options, such as rapid testing, may be more practical/feasible; and
What the cost may be should the organization wish to dismiss employees who remain unvaccinated (and do not have a legal right to reasonable accommodation).
Regardless of whatever nuance to the policy that may make sense, all employers should ensure their policy meets applicable privacy and human rights requirements. In addition, it is equally important to ensure the policy has been communicated clearly to all employees and that management/HR have guidance to ensure the policy is applied equally and consistently across all staff.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.