Written by David Doorey, York University
Readers of this blog will know that the starting presumption in Canadian employment law is that employers can terminate non-union employees for any or no reason at all, provided that they provide the legally mandated amount of notice. There are a number of exceptions to this general rule. Firstly, if an employer has “cause” for summary dismissal then it can terminate the employee without notice. Secondly, there may be a statute that restricts the employer’s right to terminate the employee for certain designated reasons.
For example, the federal jurisdiction, Nova Scotia, and Quebec have “just cause” laws that apply to eligible employees, which require employers to demonstrate a good reason for the termination. Every jurisdiction in Canada has other rules that restrict termination for one reason or other on public policy grounds. For example, it is illegal everywhere in Canada for employers to terminate an employee for supporting a union or for seeking to enforce their statutory rights, such as their employment standards entitlements (anti-reprisal laws). In addition, every jurisdiction prohibits employers from terminating employees for discriminatory reasons that fall within the list of “prohibited grounds” in human rights legislation.
This is the background legal context for ongoing debates relating to the termination of employees for not getting a COVID vaccination. I have no clue how many people have been terminated for this reason in Canada, but we know that it is happening. In the Common Law Regime, the main question is whether terminating an employee for not getting vaccinated amounts to cause for summary dismissal. As my students will know by now, the answer to that question is “it depends” on the circumstances.
In the Regulatory Regime, a big debate is whether termination for vaccination status could fit within human rights legislation. Only discrimination based on “prohibited grounds” is unlawful so the question is whether vaccination status fits within any of the listed grounds. The grounds floated most often are disability and religion/creed. I am not aware of a case yet that deals specifically with an employee challenging their termination on the basis of vaccination status and arguing that either of these grounds. I suppose it is possible that a person can fit themselves into disability or creed, but I’m not aware of that argument being successfully made yet and the circumstances in which it would be will be rare. (Here is the OHRC’s discussion of vaccines and the Ontario HRC)
Vaccine Status as a Prohibited Ground?
However, my prediction is that a right-leaning government in Canada (Alberta, Saskatchewan, Manitoba, Ontario come to mind, as well as a federal Conservative government were that party to win an election somehow) will soon consider amending human rights legislation to make it explicit that discrimination against a worker on the basis of their vaccine status is prohibited by human rights legislation. It would not surprise me if I need to update this Chart from my Law of Work text again before the 3rd edition to add this new ground.
Introducing “vaccine status” into human rights legislation will be welcomed with open arms by the anti-vaccine, anti-mandate crowd that conservatives hope to woo, and as Canada moves towards opening up and relaxing mandates (Saskatchewan and Alberta have already announced this move) in its shift towards “living with COVID”. Legislating an end to “vaccine discrimination” seems like an obvious step that conservatives might take. It would prevent employers from asking about vaccine status or from discriminating against anyone who is or who is not vaccinated. An employer that fired an employee for not being vaccinated would need to fit itself into a bona fide occupational requirement defence. An amendment like this might even get them onto Fox News and praise from that lunatic Donald Trump.
One problem with adding “vaccination status” to human rights legislation is that we don’t know what the next killer virus or variant will look like. If medical evidence were to show that vaccine status does not effect transmissibility of a virus and that unvaccinated people do not pose any greater risk to vaccinated people, then there is at least a certain logic to the argument in favour of prohibiting vaccine status discrimination. To be sure, there are strong countervailing arguments, such as the sensible public health policy goal of encouraging people to get vaccinated against deadly airborne viruses. However, if the evidence shows that unvaccinated people do pose a greater risk to the vaccinated, then it would be reckless for a government to force employers to welcome the unvaccinated into their workplace by making it unlawful for employers to weed them out.
Nova Scotia’s human rights legislation already prohibits discrimination on the basis of an “irrational fear of contacting an illness or disease”. My understanding is that ground was added during the years when people were afraid of getting HIV and there was still a lot of uncertainty about how that disease was spread. The ground was added to protect HIV positive workers from being denied employment on the basis that employers or other workers were afraid that HIV could be spread simply by being in the same room as an HIV positive person. This is another option that could potentially apply to unvaccinated workers that is narrower than an outright ban on discrimination on the basis of vaccination status. It would prohibit discrimination on the basis of vaccine status but only once the medical evidence indicates that the unvaccinated pose no greater risk to coworkers and customers than the vaccinated.
This may already be the state of the law in Nova Scotia. It would be interesting to see how the human rights tribunal there would deal with the argument that discrimination on the basis of vaccine status is discrimination on the basis of an “irrational fear of contacting an illness or disease”. Whether a fear of contracting an illness is “irrational” presumably depends on medical evidence about how the disease or illness is transmitted and, for our purposes, what role if any vaccinations play in that calculus.
My point in this quick post is simply that it would not surprise me if we soon start hearing talk of legislating a ban on discrimination on the basis of vaccine status reverberating across Canada’s prairies and in Ottawa, as the Conservatives gear up for an election with a new leader.
What do you think of the possibility of vaccine status being added to the list of prohibited grounds in Canadian human rights legislation?
D. Doorey, “Will Conservatives Add “Vaccine Status” to Human Rights Legislation?” Law of Work (February 9 2022): https://lawofwork.ca/when-conservativ…ghts-legislation/