By Howard Levitt

There must be a sufficient connection between a worker’s responsibilities and the vaccination requirement to justify imposing ‘the ultimate penalty’

Some employers (and employees) might believe that firing workers for non-compliance with vaccine mandates is settled law. After all, vaccines were the best response to a public health emergency and all levels of government both imposed and supported them. So, when an employee refuses to get vaccinated, one would think the employer has a pretty clear case for discharge.Now that the acute phase of COVID-19 has essentially ended, this topic may seem of little relevance. But the wheels of justice spin slowly and many cases are still winding their way through the courts.

Although the arbitration cases have been mixed, the courts have primarily found that employers had the right to impose vaccine mandates, with the leading case being my own in Seneca College. (Seneca won both initially and on appeal.)

As one court noted in a case involving the TTC, “If even one TTC rider or worker dies or is seriously harmed after catching Covid-19 from an unvaccinated TTC employee, it will be one too many. That is harm that is truly irreparable.”

In the unionized context, employers could suspend or layoff workers pending either the employee being vaccinated or the policy changing. Employers of non-union employees, however, felt that they did not have that recourse because both layoffs and suspensions are generally constructive dismissals.

There were always exceptions for employees with medical or religious exemptions, if an accommodation could be found without risking the health of others. And, of course, if an employee refused to provide proof of their vaccination status, the employer could treat them as being unvaccinated and terminate their employment.

Unvaccinated employees invariably argued that they should be permitted to work from home as, without contact with customers or coworkers, their vaccination status would be irrelevant. But now that employers have begun work recalls, such employees should not have special status and be permitted to work from home on the basis of being unvaccinated while vaccinated employees are forced to return to the office.

But what if an employer has no real interest in enforcing a vaccine mandate for a particular employee?

That issue recently arose in a case involving 37-year-old Jocelyn Paul, who had been employed for 10 years as a senior account manager with Sensient Colors Canada Ltd.

Her performance appraisal for the first year of the pandemic was highly positive, noting that she was able to “close a tremendous gap in revenue” despite the challenges of Covid-19. By the fall of 2021, Sensient introduced a vaccine mandate. Paul did not claim a medical or religious exemption. She simply refused to disclose whether she was vaccinated. She was the only employee who refused to comply and was fired with just cause alleged.

The court found that “in certain cases, a refusal to vaccinate may sufficiently undermine an employee’s ability to carry out their duties so as to justify dismissal for cause. However, this will not be true in every case.” It said there must be a sufficient connection between a worker’s responsibilities and the vaccination requirement to justify imposing “the ultimate penalty” of termination.

Ontario Superior Court Justice Chris De Sa looked at the relevant factors in Paul’s case:

  1. Ninety per cent of her work time since the pandemic started was from home.
  2. During the pandemic, her performance exceeded the job requirements.
  3. None of her 10 top clients required her to be vaccinated to do an on-site visit.
  4. Prior to her termination and during the pandemic, she continued to do on-site visits with clients in Ontario with no problems.
  5. She had no United States-based clients.
  6. Even though her job required that she attend certain meetings in the U.S., the employer could have arranged much of the training in other ways.
  7. She complied with all other safety requirements, such as masking.

What did the court find Sentient should have done?

“A more proportionate response here may have been to review and revise Ms. Paul’s customer portfolio to the extent required, temporarily suspend her from customer-facing sales or even possibly put her on a leave of absence.”

In short, the court found that Sensient should have accommodated Paul’s refusal by changing her job, thereby advantaging her over others who were vaccinated and creating some inconvenience or inefficiency for the employer.

The suggestion that she could potentially be suspended for months or placed on unpaid leave is also interesting, since that would generally be treated as a constructive dismissal.

This case is symptomatic of the court’s increasingly employee-friendly approach, particularly in Ontario.

And, to the point, if an employer is going to succeed in enforcing a vaccine mandate in court, they will need to — if this case is any predictor — show some genuine prejudice. One size, judicially speaking, does not fit all.