In recent months, Canadian Governments and employers shifted towards the implementation of mandatory vaccination policies in their workplaces (see our previous publication here). As deadlines for compliance lapse, employees may be subject to discipline up to and including termination.
Generally, in the event of an employee’s termination of employment, the employee is entitled to notice of termination or pay in lieu thereof and, in certain circumstances, may also qualify for severance pay, pursuant to the Employment Standards Act, 2000 (ESA). There are, however, exemptions. Most notably, employees are not entitled to notice or severance pay where they are guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and that has not been condoned by the employer (Regulation 288/01).
While Ontario labour arbitrators have begun to opine on the enforceability of employers’ vaccination policies in the unionized context (see our previous publication here), adjudicators have yet to address discipline in the event of noncompliance with a vaccination policy in the non-unionized context. For employers facing wrongful dismissal claims, however, a recent update by the Ontario Ministry of Labour, Training and Skills Development to the Employment Standards Act, 2000 Policy and Interpretation Manual (the Manual) may provide some guidance and support for employers.
The Manual is a reference source relied upon by the Director of Employment Standards for the interpretation of the ESA, and its regulations, such as Regulation 288/01. It now includes a section, commencing at page 1282, on ESA termination and severance liabilities in the context of COVID-19 vaccination or testing policies. It states, among other things, the following:
- The ESA does not prohibit employers from terminating employees for failing to get vaccinated and/or for failing to complete testing for COVID-19;
- Written notice from the employer stating that the employee will be terminated on a particular day if the employee is not vaccinated can, if done correctly, count towards the required notice period set out in the ESA; and
- The wilful disobedience exemption to the termination and severance pay provisions in the ESA may apply where an employee does not comply with the employer’s vaccination and/or testing policy.
Of course, any wrongful dismissal action must be decided on the facts of the case. That said, the foregoing suggests that an employee’s refusal to comply with a mandatory vaccination policy may, in certain circumstances, constitute wilful misconduct or disobedience such that termination and/or severance pay would not be owing under the ESA.
Despite the foregoing, a final word of caution is necessary: the Manual does not have the force of law. Accordingly, adjudicators are not bound by the guidance contained therein. Although the Manual provides good guidance on the Ministry’s view and may inform the approach taken by Ontario adjudicators, we will have to wait for judicial decisions for further direction on the viability of wrongful dismissal claims involving COVID-19 vaccination policies. We will continue to monitor developments closely.