Ontario courts have refused to intervene on cases filed by employees and unions seeking injunctions that would prevent Covid-19 vaccine mandates from being forced upon them until grievances are resolved through arbitration. The courts have stated that such cases “should be handled by the labour system.”
Toronto lawyer Tanya Walker said that in non-union workplaces, employers in Ontario are basically able to “fire anyone for any reason, provided it’s not discriminatory under the Ontario Human Rights Code.”
However, she said that firing without a reason is expensive for employers. Challenges to vaccine mandates will likely come down to whether appropriate accommodation was provided for medical reasons or religious beliefs, and whether the termination is considered to be with or without cause.
Walker said: “If someone has a clear and honest refusal [to be vaccinated] and the vaccination policy wasn’t actually in place when the person was hired, it might be difficult to justify termination with cause.”
Employers and workers in the state are getting a better understanding of when and what kind of vaccine mandates can be introduced in the workplace following recent rulings on the issue.
However, each case is different and specific circumstances need to be considered, including the type of workplace and the impact on the community.
According to a lawyer, a series of recent decisions has shown labour arbitrators are considering the specifics of each workplace and policy determining whether the mandates can be imposed in an unionised setting.
The Ontario Human Rights Commission has issued guidance on vaccine mandates, saying that “requiring proof of vaccination is generally permissible so long as there are accommodations for those who can’t be immunised for reasons under the human rights code, such as religion or disability.” However, it notes that personal preferences do not meet the threshold for accommodation under the code.