By Jason Beeho, September 20, 2021

Mandatory Vaccination Protocols in the Workplace – Get with the program, or else (?)

On August 17, 2021, Prime Minister Justin Trudeau announced that the government would implement a policy of mandatory vaccination for all federal public servants, subject only to exclusions for “legitimate medical reason[s]”. He went on to caution that, for those public service employees who refuse to be vaccinated, “there will be consequences.”

As at this writing, one month later, mandatory vaccination policies have been rolled out for public servants at all levels of government, and by private employers – large and small – across the country.

Typically, those policies identify a deadline by which employees must verify that they are fully vaccinated; and those deadlines are coming fast. Moreover, with COVID’s “4^th wave” dominating the headlines (and with Alberta, in particular, reeling from a surge in cases), those deadlines are unlikely to be extended.

And when those deadlines run out, what will be the “consequences” for employees who have refused to be vaccinated?

There is every reason to believe that those consequences will be severe.

If an employer can demonstrate that a mandatory vaccination policy is a reasonable and justifiable component of its occupational health and safety strategy (and, in most cases, it will be), then willful non-compliance with that policy (again, subject to exceptions for legitimate medical reasons) will amount to willful misconduct. Willful misconduct amounts to “just cause” for dismissal. And in the event of “just cause”, an employer is not obliged to provide notice of termination, termination pay, or severance pay.

In other words, an employee who refuses to comply with a mandatory vaccination policy is not only putting his or her employment at risk, but is inviting termination for “just cause” – i.e. without a severance package. 

At present, many employers are allowing for alternatives – at least temporarily. For example, unvaccinated employees may be permitted to continue remote working arrangements for a period of time, may be permitted to attend at the workplace subject to providing proof of negative COVID test results multiple times per week, or may be offered a brief “grace period” in the form of an unpaid leave of absence during which they might re-consider the choice to remain unvaccinated.

But, in most sectors, employees should not expect such allowances to last.

And nor should they make the mistake of believing that a “personal choice” to remain unvaccinated will somehow attract the protection of human rights legislation, or that employers will lack the resolve to proceed with “just cause” terminations. 

More to the point, refusing to comply with a workplace vaccination policy will in most cases present no legitimate opportunity to claim a severance package or other damages. 

Although there is hardly perfect consensus on the issue, there is no mistaking the direction of the prevailing winds. Mandatory vaccination policies are becoming the “new normal” for Ontario workplaces; and, stated bluntly, employees are being presented with a choice – either get with the program. . . or else.