Is refusing a vaccine considered a frustration of contract?

Besides the myriad of safety protocols employers and HR professionals have to be concerned about, is it a good idea to implement a mandatory vaccination policy for all workers?

Canadian HR Reporter spoke with Paul Boshyk, partner employment labour relations at McMillan in Toronto, about some of the legal landmines employers will have to be aware of when implementing such a policy.

Q: Does an employer have to mandate a vaccination policy?

A: “Generally speaking, employers are not required to have mandatory vaccination policies, although there are some potential exceptions.

“One would be in Toronto [after] Toronto’s medical health officer, Eileen de Villa, issued a statement ‘strongly recommending’ that all employers in Toronto institute a workplace vaccination policy that is going to have to require that workers provide proof of their vaccination status; that unvaccinated employees have to provide written proof of a medical reason; and also that unvaccinated workers have to complete a vaccination education course.

“Some have taken the view that because of the way that step three regulation is written, and employers have to comply with the recommendations and instructions of public health officials, that statement would fall under that requirement.”

Q: Has there been any guidance provided by the courts?

A: “Not when it comes to COVID vaccination policies. There have been some legal decisions with respect to unionized workplaces in the context of the flu vaccine but those cases primarily dealt with employees who were either frontline workers or worked with vulnerable members of the population, and focused on whether the employer had the management rights to institute a mandatory flu vaccination policy.

What we’re talking about with the COVID vaccine is uncharted waters and we don’t have unfortunately, guidance from the courts.”

Q: What items should be included in a written policy?

A: “The policy has to be clear and unambiguous. The purpose of the policy is going to have to be clearly stated. It’s also going to be important to frame what the consequences of not complying with that policy may be.

“Whether that’s a termination of employment, whether that’s some other arrangement pursuant to which the employee might be working under conditions where vaccination is of last consequence, ultimately that’s going to be a decision for the employer to make based on a particular workplace and their own customers and clients and so forth. But clearly explaining to employees what the consequences of failing to comply with the mandatory vaccination policy is an essential component.”

Q: What are the reasons a worker can be exempted from the policy?

A: “Under applicable human rights legislation, disability is a protected characteristic, as is religion or creed, depending on which jurisdiction you’re in. It’s conceivable that there are persons who for reasons of disability or religion or creed are unable to get vaccinated and when that happens, employers do have an obligation to reasonably accommodate those persons to the point of undue hardship.

“The first step would be for the employee to provide evidence and information to the employer about the reason why they’re unable to comply with the employer’s mandatory vaccination rule so that the employer can assess that information and try and determine first about whether a reasonable accommodation without undue hardship is possible.

Paul Boshyk

“In particular, arrangements whereby the employee could continue to work remotely to the fullest extent possible or heightened health and safety protocols that may exist for that particular employee, depending on the case. Whether it’s continuing to wear a mask after the face-covering requirements have gone away, whether that’s a face shield, whether that’s enhanced social distancing or a private office, it’s really going to depend on the facts of each case.”

Q: What constitutes proof of vaccination?

A: “A lot of employers are taking different approaches to this. Some employers are using the honour system, whereby employees are being asked to affirm or attest to their vaccination status and the employer is not requiring the employee to provide proof. Other employers are requiring some form of evidence to be given whether that’s the receipt or certificate that was provided by the applicable government authority.

“It doesn’t help that there is still quite a patchwork of requirements across not just the various provinces but the various local municipalities as well. The patchwork approaches are not doing any favours to employers but it’s what we have to go on for the moment.”

Q: Could a termination for refusing to get a vaccine be considered a frustration of contract?

A: “That’s the million-dollar question and anyone who tells you that they know the answer to that question at this time definitively is probably lying to you.

“There are some well-known employee-side lawyers who have provided their view that companies do have the right to institute mandatory vaccination policies, subject to human rights accommodations of course, but that for any employee who refuses to get vaccinated and isn’t subject to reasonable accommodation, has to be paid their notice in severance or has to be given their notice and severance as if they had been dismissed from their employment without cause.

“But another argument is employers under the occupational health and safety legislation have a general duty to ensure the health and safety of all workers in the workplace and it certainly it is arguable that within that right, there is a right to mandate mandatory vaccination policies. But whether failure to comply with that triggers an obligation to pay severance or whether it results in the frustration of an employee’s employment, it’s still very much a legal grey area that the courts are going to have to provide guidance on before anyone can definitively say, one way or the other.

“In those circumstances where it’s a government mandate, I can see a strong argument for frustration of the employment contract. In those circumstances where it’s mandated into law and the and the employee refuses, it’s for the judges, the courts and the tribunals to decide and unless and until we have that clear guidance, no lawyer can say with a straight face that they know for certain where the chips are going to fall on this.”

Recently, we asked some other legal questions about rapid testing in the workplace and as well as about mask-wearing policies.