Lawyer explains worker rights for COVID-19 vaccines and boosters

Workplaces are implementing COVID-19 vaccine mandates but with third doses and booster shots on the horizon for many people, there are question about how far a vaccination policy can go.

Hena Singh is a lawyer and workplace investigator. She's also a partner at Singh Lamarche LLP in Toronto.

She explained to Craig Norris, host of CBC Kitchener-Waterloo's The Morning Edition, that the law is pretty clear on what employers can ask of employees and when they're allowed to terminate a person's employment.

The following has been edited for length and clarity.

Craig Norris: When it comes to COVID-19 vaccines, third doses or boosters, what are employers allowed to ask for? 

Hena Singh: Just like mandatory vaccination policies, an employer can require that you get a booster or the third dose. 

There's nothing different between the booster and the original two vaccinations that employers could previously require. 

I think a lot of the confusion is that people feel that employers are telling them that they have to get the vaccination. And individuals have the right to choose what they do with their bodies. So an employer can't tell them that they have to get it. But the employer can tell them that there's repercussions to their employment if they don't. 

So an employer could actually say: 'We're going to terminate you if you don't get the booster,' … or they can put you on a mandatory leave of absence or many other things. 

The only exception to that is if there is a Human Rights Code exemption, which is medical or religious exemption, which would prevent you from getting the booster. 

CN: So how is that different than forcing people to get it? 

HS: Well, if you think about it, if people were forced to get it, we would have a 100 per cent vaccination rate in Ontario. And now we only have a [85 per cent of people eligible vaccinated] in Ontario. So clearly people aren't forced to get it because there's [15] per cent of the population that hasn't gotten it.

But employers can say there are repercussions to your employment, just like the government is saying, there's repercussions to your ability to go to restaurants and bars and gyms if you don't get it. So there's repercussions if you don't get it, but no one's forcing you to get it. 

CN: So to be perfectly clear, an employer could state, say, 9:00 a.m. 'If you're not vaccinated, you're fired.' And that's legal?

HS: Yes.

There's two things that need to be explained. An employer can terminate someone's employment for any reason as long as it doesn't breach the Human Rights Code. So if there's a Human Rights Code exemption that's in play, which is medical or religious, which are very narrow, very, very, very narrow in these circumstances, so if those come into play, an employer cannot terminate someone's employment. 

But aside from that, an employer can terminate you for any reason.

So if you drive a yellow car, your employer can terminate you. Just like if you don't get your booster, your employer can terminate you. The important piece is that they have to give you a package upon termination if they choose to terminate you without cause, which is what we call that: without cause termination. 

CN: Is it different for unionized workplaces?

HS: It's no different. If an employer has a mandatory vaccination policy and employees decide not to get it, than the employer can still take those actions. 

The union might push back depending on the wording of the collective agreement. The only thing that's different is that there's a large contract between the employer and the union that might govern whether the employer can do this or not. 

CN: Could this be the same, then for the flu shot? 

HS: Yes, it can be. An employer can mandate that employees get flu shots if they remain employed. Again, the employer can terminate someone's employment for any reason as long as it doesn't breach the Human Rights Code.

So that if a person is refusing to get the flu shot because of reasons under the Human Rights Code, then they can't be terminated. But if they say we just don't feel like getting it this year, the employer could say, 'Well, this is any reason that doesn't come under the Human Rights Code' and terminate the employee with a package. 

CN: So if there is no collective bargaining agreement, there's no union, say, for instance, you work in retail and you're like, 'I'm just not going to get it. So I'm fired now.' Does an employer have to provide like a payment or a buyout in that situation? 

HS: In most circumstances, the answer is yes. But the amount of what the employee is entitled to will depend on the circumstances, and it's a very significant analysis in terms of what someone would be entitled to. So it's not formulaic. 

CN: What would you say to people who say this is unfair? Specifically, when it comes to vaccine mandates.

HS:  I think people's individual, ethical or moral standards might be different than the law. 

And so under the law, this is not unfair. It might be unfair based on your own moral standards, which is, I want to make choices for my body and not have repercussions. But the law says otherwise. 

And so that would be my answer: The law might not always match up with people's moral and ethical standards. 

CN: What roll out does misinformation play? I see a lot of Twitter lawyers out there on social media giving advice.

HS: We play a fairly educational role in these circumstances and we also negotiate and we have an advocacy role.

But there's a lot of correction that needs to happen in these circumstances. And I'll say, as an employment lawyer, my role is correcting the neighbour's point of view and the friend's point of view on the family member's points of view all the time. I have this conversation several times a day with individuals trying to explain what an employer can and can't do in these circumstances. 

Listen | Laywer and workplace investigator Hena Singh explains what employers are allowed to do when it comes to vaccine mandates.