COVID-19 Vaccinations: Refusals and Terminations

COVID-19, Employment Law | October 6, 2021 | Written by Natasha Nair

COVID-19 has given rise to an unprecedented global pandemic. In light of the rise of COVID-19 cases in British Columbia, the B.C Government’s response in implementing vaccination policies has led to legal implications and policy considerations that employers must consider for their respective workplaces. Employees have expressed concerns regarding their ability to refuse vaccination and human rights violations which may arise as a result.

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Employers cannot force employees to get vaccinated; however, an employer can make vaccination a condition of continued employment depending on the nature of the work. For example, certain employers including hospitals, long-term care facilities, and group homes will have a stronger case in mandating that all employees be vaccinated in comparison to other general labour environments, where social distancing and safety is less of a concern.

If an employee refuses to get vaccinated, the refusal may be justified if it involves a protected ground under the B.C. Human Rights Code (the “Code”). The Code sets out a list of personal characteristics that are protected grounds and applicable in the employment context. These personal characteristics include race, colour, ancestry, place of origin, religion, sex, gender identity or expression, sexual orientation, physical disability, mental disability, marital status, family status, age, political belief, and summary or criminal conviction.

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If an employee’s refusal is based on personal preference, this is not a protected ground and accordingly, the employer may terminate the employee, provided there is appropriate notice or severance pay in accordance with the employment contract or at common law. Some examples of protected grounds where refusal may be justified are medical conditions or medication that reacts to the vaccine, and physical or mental disability. Of note, an employee is entitled to bring forth a complaint to the Human Rights Tribunal in refusing to take the vaccine on religious grounds; however, in the interest of protecting the public, it is highly likely the claim will not succeed.

If an employer terminates an employee for refusing to abide by vaccination policies, certainly there is legal precedent in the area of influenza vaccinations to support the employer’s case. Historically, British Columbia has implemented influenza vaccinations since 2012, which require healthcare workers to be vaccinated against influenza or wear a mask throughout the influenza season. This was analyzed in Barkley v Mohawk Counsel, where a working nurse refused the influenza vaccine on the grounds that she has never been sick and had immense faith in her immune system. The employer stated that immunizations were necessary to protect residents from the flu. The Arbitrator concluded that the decision to impose vaccination requirements for employment was not unreasonable and termination was upheld.

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In summary, should an employee refuse to be vaccinated, the employer may have a strong case to terminate the employment relationship in the interest of public safety. Both employers and employees should consider alternative arrangements, including working remotely, if an employee is not vaccinated. However, it is vital that employers be mindful of the plethora of legal issues when implementing workplace policies while employees be mindful that their refusal to be vaccinated may not be appropriate and may not be supported by law.

© Linley Welwood LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.

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