Can My Employer Mandate the COVID-19 Vaccine?

Mandatory Vaccinations for Employees

In Canada, an employer can’t automatically impose a vaccine mandate for non-unionized employees. Any policy that attempts to force employees to fully vaccinate against COVID-19 may be illegal due to discrimination based on perceived disability, and a violation of their human rights.

A company’s policy on vaccinations may be considered legal if the government that regulates the workplace (provincial or federal) mandates vaccinations for that particular workplace or sector of employment. Continue reading to learn more about your rights, including what happens if you are fired for refusing to get vaccinated. You can also watch an online Q&A session on pandemic employment rights with leading Canadian Employment Lawyer Lior Samfiru.

Mandatory Vaccination Questions: Send us your question

Do you have a question about vaccinations in the workplace? Are you dealing with workplace mandates and are unsure of what to do next? Submit your questions now, and the employment law team at Samfiru Tumarkin LLP will answer them promptly.

NOTE: We can’t help unionized employees – Find out why we can’t help you

Webinars on Mandatory Vaccinations in the Workplace

WATCH BELOW: Top Canadian employment lawyer Lior Samfiru held a live, online Q&A session about mandatory vaccinations in the workplace for non-unionized employees working in Ontario, Alberta and British Columbia.

Samfiru Tumarkin LLP conducted three webinars in 2021, on September 17, September 28, and October 26.

Can I be fired for refusing a COVID-19 vaccine?

Unless vaccinations are mandated by government, it is illegal for a company to fire an employee for cause (or “just cause”) if they refuse to get fully vaccinated against COVID-19. That said, you can’t physically prevent your employer from ending your employment relationship. If that happens, the company may owe you monetary damages.

An employer may face a claim for wrongful dismissal from a worker if they are let go without the proper amount of severance pay – up to 24 months’ pay – or no severance package at all. The company may also face reinstatement and human rights claims for terminating or letting an employee go in this case.

If you lose your job in Ontario, Alberta or British Columbia due to a mandate put in place by your employer, contact the employment lawyers at Samfiru Tumarkin LLP immediately to learn about the compensation you may be owed.

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Can my employer force me to get vaccinated?

An employer can’t force an employee to get vaccinated. The company can’t make you get a COVID-19 shot if you don’t want to. If your employer requests that you get vaccinated and you refuse to comply, they may choose to fire you – though the termination would likely be one without cause and potentially a human rights violation.

Mandatory vaccinations and rights for Unionized Employees

If you are a unionized employee working in Canada, you must refer to your union for guidance and representation on all matters relating to COVID-19 vaccination mandates (and all other employment law matters).

As per your collective bargaining agreement, only the union can represent you on employment matters. If you have a dispute with your employer about a workplace issue, including terms of employment, disputes, termination, and severance pay, you must bring your grievance to your union representative. An employment lawyer is unable to legally represent you in these matters – even if the union has decided not to support you.

A unionized employee, who feels that they have been abandoned by their union, may be able to file a Duty of Fair Representation complaint against their union with the labour board.

Can my employer ask for proof of vaccination or vaccination status?

No, unless there is a government mandate. That said, an employer may choose to terminate an employee who does not provide proof of vaccination and that employee would be owed severance and other damages.

Can I be put on an unpaid leave of absence if I refuse to get vaccinated?

Your employer can’t put you on an unpaid leave of absence if you fail to get fully vaccinated by the company’s deadline. This represents a significant change to your job. Your employer has effectively ended your employment. You may have the choice of leaving your job with a full severance package – as much as 24 months’ pay – through a constructive dismissal claim. Contact our team today to find out if you have a legitimate claim for severance before you resign from your position over this change.

Can my employer penalize me if I don’t get vaccinated?

An employer can’t penalize (reduce pay or duties) or terminate an employee based on their vaccination status.

Can I get EI if I am fired because I didn’t get vaccinated?

If there is no government mandate requiring vaccination for their industry, an employer can’t fire an employee “for cause” if they do not get fully vaccinated against COVID-19. The termination would be a termination without cause, meaning that worker is eligible for Employment Insurance (EI) and full severance pay.

If you are fired for cause because of your vaccination status, an employment lawyer at Samfiru Tumarkin LLP will need to get involved. They can ensure that the employer correctly completes your Record of Employment to reflect a termination without cause, making you eligible for EI.

I am fully vaccinated as per company policy. Can I refuse to get a booster shot if my employer requires me to get one in the future?

Your employer’s ability update their company policy to mandate a COVID-19 booster shot for employees will depend on any government mandates. If the government mandates that your company must require employees to get a booster shot, then you may need to get one.

Can my employer fire me for not getting a booster shot?

Your employer can’t fire you for cause if you refuse to get a COVID-19 booster shot. If you are fired for not getting one, it would be a termination without cause. This means that the company must give you a full severance package. Employers may also be in violation of their employee’s human rights, resulting in additional compensation.

The only way that an employer can let a worker go for cause for refusing to get a booster shot, is if there is a government mandate in place that requires employees in that specific sector to get the booster.

Can my employer force me to get rapid testing if I do not get the vaccine?

It is not illegal for an employer to ask for regular rapid tests or COVID-19 tests. That said, if you are let go for refusing, you will be owed full severance pay.

In a situation where the employee works for an industry where the government has imposed a requirement for COVID-19 tests (for example, in Ontario, that would be hospitals and long-term care homes), and the employee refuses to get tested and is let go, they are not owed severance.

Can my employer force me to pay for my own rapid testing?

No, the employer can’t force you to pay for COVID-19 rapid testing. They should cover the costs. An employee who is forced to cover costs for rapid tests may be able to claim constructive dismissal – termination with a severance package.

Can I refuse to do rapid testing if I’m not vaccinated?

You can refuse rapid testing if you are not vaccinated against COVID-19, but your employer may choose to let you go, in which case you would be owed a full severance package.

Can I be terminated for cause for not complying with my employer’s rapid testing, masking or other pandemic protocols?

An employee can only be terminated for cause if the employee refuses to do something mandated by the government. If there is a government mandate for masking or tests, and the employee does not comply, it can lead to a termination for cause. If there is no government mandate and the employee is terminated, it would be a termination without cause.

If the government does mandate the vaccine, can I be terminated with cause if I work in that mandated sector?

Yes. But you have to make sure that the government has, in fact, mandated it and given no other options.

Can a lawyer notarize a letter from my priest, rabbi or imam, stating moral issue with the vaccine?

Only if that is what the employer specifically said that it requires. It’s not something an employee can just choose to provide.

Can a lawyer write a letter on my behalf stating that my medical documents exempt me from the vaccine?

No. You need a letter from your doctor or medical professional supporting your medical exemption from getting a COVID-19 vaccine.

I want to file a charter challenge against the government over COVID-19 vaccine mandates. Can you help me?

We can’t help you with a charter challenge against the government. The employment lawyers at Samfiru Tumarkin LLP only deal in issues between employees and employers. The Charter of Rights and Freedoms only applies to what the government does. It does not apply to private business.

What happens if I don’t respond to my employer’s request to vaccinate?

Your employer may choose to let you go if you fail to respond to their request to get a COVID-19 vaccination. There is nothing you nor our firm can do to stop them from firing you. However, you would likely be owed full severance pay – as much as 24 months’ pay depending on numerous factors. If you do lose your job, contact our team immediately so we can work to secure full compensation.

I signed a form saying that I understand my employer is implementing a vaccine policy. Can my employer use it against me?

If you sign a form saying you understand that your employer is implementing a vaccine policy, and you are subsequently let go for not getting vaccinated, your employer cannot use such a form to avoid paying you severance.

Mandates by Government

We have created detailed guides covering COVID-19 vaccination mandates and rights for non-unionized employees in the following provinces and sectors (where Samfiru Tumarkin LLP is licensed to represent clients):

Mandates by Company

We have created brief guides on employee rights based on specific companies operating in Canada and the particular vaccination policy they have announced:

• University Health Network (UHN) and mandatory vaccinations (see Oct. 25 update)
• RBC mandatory vaccination policy
• Air Canada and mandatory vaccinations (non-unionized employees)
• CNRL vaccine mandate and terminations
• Alberta Health Services vaccine policy and unpaid leave

Federal Vaccination Mandate for Cross-border Truckers

Starting January 15, 2022, the federal vaccination mandate for cross-border truckers requires any unvaccinated Canadian truckers re-entering Canada from the United States to get tested for COVID-19, and quarantine for 14 days.

An employer can let go or lay off an unvaccinated trucker if they can no longer carry out their duties by operating cross-border trucking routes due to the government vaccine mandates. A truck driver in this situation would not be entitled to severance pay.

Disclaimer and Contact Information

Samfiru Tumarkin LLP believes that vaccinations are an effective tool in the fight against COVID-19, and urges eligible Canadians to fully vaccinate to protect themselves and those around them. However, the fact remains that there are various legal realities and considerations that must be observed and enforced where workplace policies are concerned, including mandatory vaccinations, human rights, terminations and severance entitlements.

If you still have questions about your rights or want to consult with an experienced employment lawyer at the firm, please contact us at 1-855-821-5900, Help@EmploymentLawyer.ca, or fill out an online form. Our Toronto employment lawyers, employment lawyers in Ottawa, Calgary employment lawyers and Vancouver employment lawyers can help.

As Canada’s most positively reviewed employment law firm, we are ready to give you the advice you need, the compensation you deserve.

The content on this page, and the pages linked to within this resource, does not constitute legal advice, and is for information purposes only. For legal advice, please talk to an employment lawyer directly to discuss all relevant details about your situation.