Authors – Alan Riddell & Kyle Van Schie
Revised November 2021
Now that the worst effects of the COVID-19 pandemic finally appear to be over, in most parts of the country, thanks to widespread vaccination, many offices are reopening, or will soon do so. Those offices now need to be staffed. For that to happen, employees need to start returning to work at the office.
But after months of working from the comfort of their homes, many of your employees may not wish to return to the office. Some may prefer to spend the fall at home, close to their dog and/or to their kids! Others may be genuinely hesitant about getting vaccinated because of rumours that they may have read on the internet about various vaccines!
To what extent can you, and other provincially-regulated employers, force all your employees to immediately take these steps that they may not want to take?
Click here to read Alan’s recent insights in the Ottawa Business Journal.
Here are the top 10 most frequently asked questions and answers, pertaining to this vital, and time-sensitive, issue.
1. Can we force our employees to return to work at the office and to stop working remotely from home?
ANSWER: YES. If you so choose, you can force any and all of your non-unionized employees to return to the office on a full-time basis, except for:
(i) employees who have special childcare and eldercare obligations towards dependent children or parents that demonstrably cannot be discharged other than by continuing to work from home, and whom you must therefore accommodate pursuant to the Ontario Human Rights Code;
(ii) employees who can prove, with medical evidence, that they suffer from a disability or medical condition that would be aggravated by having to return to work at the office; and
(iii) employees whom you hired during the pandemic, and whom you have directed to work mostly from home without ever advising them that, once the pandemic subsided, they would eventually be expected to work from the office. Those recently hired employees may be able to successfully claim that it is an implied term of their employment that they be permitted to continue to work from home.
Needless to say, these 3 exceptional categories of employees are very narrow, and few employees will be able to fit themselves into any one of them.
The vast majority of your non-unionized employees will be unable to successfully avail themselves of those narrow exceptions and must therefore follow your directive to return to the office, regardless of whether or not they wish to do so. That is because when most of them were hired, it was an express or implied term of their employment that they work from the office whenever directed to do so. The fact that your employees may have worked temporarily from home throughout the pandemic does not lawfully alter that original term of their employment.
In a like vein, it is irrelevant from a legal standpoint that your employees may now be quite capable of carrying out their work remotely with just as much, if not more efficiency than if they were physically at the office. That is because (in the case of employees who were originally hired to work from the office), all employers ordinarily enjoy an implied, and largely unfettered, legal right to decide when, and even whether, to permit an employee to work from home, regardless of his or her efficiency in working from home.
For that reason, no employee can force you to permit him/her to go on working from home simply by arguing that they can do so just as efficiently, or more efficiently, than if they were at the office, unless he/she can first establish that they fall within one of the exceptionally narrow categories of employees who enjoy special legal protections pursuant to the Ontario Human Rights Code.
In the case of unionized employees, the situation may be different as the employer’s rights may be fettered by the content of their collective agreement.
2. How much notice must we give our employees that we require them to return to the office?
ANSWER: As a general rule, unless they can demonstrate that they have special childcare or eldercare responsibilities, very little notice need be given when notifying non-unionized employees that you require them to return to the office.
In most cases, a week or two of notice would reasonably be considered to be sufficient for most employees to organize themselves for a return to work and to make any necessary arrangements for resumed transportation to and from work.
3. If any of our employees refuse to return to the office can we actually fire them?
ANSWER: YES. If you choose to do so, you can actually fire any non-unionized employees who refuse to return to the office, so long as they are not employees:
(i) who have special childcare and eldercare obligations towards dependent children or parents that demonstrably cannot be discharged other than by continuing to work from home, and whom you must therefore accommodate pursuant to the Ontario Human Rights Code; or
(ii) who can prove, with medical evidence, that they suffer from a disability or medical condition that would be aggravated by having to return to work at the office.
Employees who fall into either of those two categories are protected from dismissal by the Ontario Human Rights Code. However, as previously stated, the number of such employees in the workforce is statistically minuscule. As a result, the overwhelming majority of employees enjoy no such legal protections and could be fired, even without notice or pay-in-lieu of notice, for refusing to obey a clear directive to return to work in the office.
4. When we fire any of our employees for refusing to return to the office, must we pay them termination pay and/or pay-in-lieu of notice?
ANSWER: NO. If you choose to fire any employees for refusing to return to the office, you will generally not have to pay them termination pay or pay-in-lieu of notice so long as (a) they were not hired during the pandemic (without being warned that they would eventually have to come into the office); and (b) you first provide them with at least one clear written directive reasonably advising them that if they do not return to work by a specified future date, you will permanently replace them with someone else and will assume that they have abandoned their job.
In deliberately refusing to abide by a clear written directive, without legal justification, and in the knowledge that such refusal will result in your replacing them with someone else, an employee forfeits his/her legal right to termination pay or pay-in-lieu of notice.
5. Can we force our employees to get vaccinated?
ANSWER: YES. If you choose to do so, you can force all your non-unionized employees to get vaccinated, on pain of dismissal, subject to 2 very limited exceptions: (i) employees who can prove that they belong to a religious sect or creed that forbids vaccination on sincerely held grounds; and (ii) employees who can demonstrate, with medical evidence, that they suffer from some recognized disability or medical condition that would likely be aggravated if they were to be vaccinated. Pursuant to the Ontario Human Rights Code, both these 2 categories of employees enjoy some degree of protection from being forced to vaccinate.
Needless to say, few if any of your employees will be able to fit themselves into either of those 2 extremely narrow exceptions.
Anti-vaxxers, and those who entertain deep and sincere skepticism and/or fears of the vaccine, enjoy no protection under the Ontario Human Rights Code nor any other law. Those employees can therefore lawfully be dismissed for their beliefs and fears, so long as those beliefs are not religiously (or creed) based, and so long as those fears are not grounded in some recognized disability or medical condition that they can prove that they have, and that would be aggravated if they were to be vaccinated.
An employee’s sincere fear of being vaccinated and/or concerns about the consequences of vaccination do not alone protect him/her from termination. It is only if those fears and concerns are proven, via evidence, to be medically or religiously (or creed) based, that he/she can legitimately refuse a directive to be vaccinated, on pain of dismissal.
For these reasons, the overwhelming majority of your employees – likely more than 99% – will effectively have no choice but to obey your directive to get vaccinated or lose their jobs if you choose to issue such a directive to them this summer or fall.
6. If any of our employees refuse to get vaccinated can we actually fire them for refusing to do so?
ANSWER: YES. If you choose to do so, you can fire any non-unionized employees who refuse to get vaccinated, so long as they neither genuinely belong to a religious sect or creed that forbids vaccination on sincerely held grounds nor suffer from some recognized disability or medical condition that would demonstrably be aggravated if they were to be vaccinated.
In neither of those exceptional situations can the employee be fired, due to the Ontario Human Rights Code, which provides special legal protections to both these small groups of employees. As indicated, all other Ontario employees, who do not fall into one or other of those two exceptional categories, enjoy no similar protections under the Code, and can all therefore be fired, with or without cause, if and when their employer chooses to fire them.
It is important to note that the burden of proof lies on the employee to prove that he or she falls within either of those 2 extremely narrow exceptions that enjoy protection under the Code. That burden of proof is heavy, and as previously indicated, the number of employees who will be able to successfully discharge it will be statistically minuscule. For that reason, most if not all your employees who refuse to get vaccinated can be fired, if they fail to comply with your directive that they get vaccinated, and if you then choose to fire them over that issue.
7. When we fire an employee for refusing to get vaccinated, must we pay them termination pay and/or pay-in-lieu of notice?
ANSWER: NOT LIKELY. If you choose to fire an employee for refusing to get vaccinated (despite the vaccine being available), you will probably not even have to pay them any termination pay or pay-in-lieu of notice, so long as (a) you can establish that their failure to get vaccinated poses a potential health risk to colleagues and clients in your workplace; and also so long as (b) you first provide them with a clear written directive advising them that their failure to get vaccinated by a specified future date will result in your replacing them with someone else who has been vaccinated.
If you can establish that both these conditions have been met, then you would probably have legal just cause to dismiss the employee without paying him or her any termination pay or pay-in-lieu of notice, although no Court has yet ruled directly on this issue. This is because Section 25 of the Occupational Health and Safety Act requires you to “take every precaution reasonable in the circumstances for the protection of a worker”, including, arguably, the obligation to ban from the workplace anyone who is at heightened risk of causing a potentially life-threatening covid outbreak. Judges and arbitrators have interpreted that Section as requiring employers to act even where there is no certainty of enhanced danger, and where there is merely a probability of enhanced danger.
Even if you cannot yet prove that an employee’s failure to get vaccinated poses an increased probability of enhanced danger to colleagues and clients in your workplace, you would still have the legal authority to terminate his/her employment, on a ‘without cause’ basis by paying him/her the pay-in-lieu of notice prescribed in their employment contract. Assuming that their employment contract contains a properly drafted, and still up-to-date termination clause, such pay-in-lieu of notice could be as little as a few weeks of salary.
8. This fall, can we force our employees to provide us with proof that they have received their COVID-19 vaccinations?
ANSWER: YES. It would appear that in most parts of Ontario, including Ottawa and Toronto, you can require your employees to provide you with evidence proving that they have received their COVID-19 vaccinations, on pain of dismissal, should you choose to insert that requirement into your organization’s vaccination policy.
While the Ontario Human Rights Code does not prohibit an employer from terminating employees for refusing to comply with a directive that they provide proof of vaccination subsection 63(2) of the Occupational Health and Safety Act of Ontario (“the OHSA”) provides that no employer “shall seek to gain access…to a health record concerning a worker without the worker’s written consent”. However, that subsection also expressly states that employers may nonetheless insist on their employees’ disclosure of their health records “in order to comply with another statute”.
Another statute, the Reopening Ontario Act (“the ROA”), explicitly stipulates (in Section 2.1) that employers are required to operate “in compliance with any advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health” in the municipality or district in which they operate.
The Chief Medical Officers of most health units, including those of Ottawa and Toronto, have now issued health directives expressly recommending that all employers issue vaccination policies requiring their employees to provide them with proof of vaccination status. Accordingly, when an employer adopts a vaccination policy insisting that an employee provide proof of vaccination, it is doing so in compliance with a provision of the ROA that explicitly requires it to follow the advice of medical officers of health that have recommended that it insist that its employees disclose proof of vaccination. In insisting on proof of vaccination, that employer is therefore acting in compliance with the exception set forth in Subsection 63(2) of the OHSA. If that employer were to threaten to terminate an employee for failure to cooperate in abiding by that medical advice, in the manner envisaged by the ROA, such would therefore not constitute a reprisal under the OHSA since, pursuant to Subsection 63(2), that employee now enjoys no legal right to resist disclosure in those particular circumstances where such disclosure has now been recommended by public health authorities.
For these reasons, if your organization is located in Ottawa or Toronto, or any other part of Ontario whose local health unit has recommended the disclosure of vaccination status, it is free – notwithstanding Subsection 63(2) of the OHSA – to insist on its employees providing proof of vaccination, within a reasonable period of time, and then to dismiss them if they fail to do so by that deadline.
While your organization is permitted to adopt a vaccination policy requiring its employees to provide proof of vaccination, it is not permitted to require that they disclose any underlying medical condition or disability from which they suffer that might affect their ability to get the COVID-19 vaccination. If an employee voluntarily chooses to disclose such medical condition or disability to you, they may do so, but you cannot require that they do so, either directly or indirectly. To do so would contravene the Ontario Human Rights Code, which precludes employers from discriminating against employees, directly or indirectly, based on such disability or condition
9. This fall, can we unilaterally change the job duties and/or jobs of our returning employees, without their consent?
ANSWER: YES. You can indeed make unilateral changes to the job duties and/or job of any of your returning (non-unionized) employees this fall, without their consent, so long as those changes, from an objective standpoint, do not significantly worsen their job. If those changes have a significant detrimental impact on the employee’s job or position within your organization, then those changes will be deemed by law to have triggered a constructive dismissal of that employee, thereby legally entitling him/her to claim constructive dismissal damages from you.
Changes that have a significant detrimental impact such as to trigger a constructive dismissal include:
(i) Any significant demotion, reduction in status, or change in reporting functions that would be objectively humiliating to the employee;
(ii) Any major reduction in the employee’s core duties and responsibilities; and/or
(iii) A reduction of 10% or more in the employee’s remuneration or ability to earn commission income.
10. What happens if we significantly change the job duties of one of our returning employees, this fall, in a detrimental way?
ANSWER: As indicated, if you significantly change those job duties without the employee’s consent, and to his/her detriment, then in theory you risk triggering a constructive dismissal claim for pay-in-lieu of notice. However, in practice, it is rarely easy for the affected employee to successfully prosecute such a constructive dismissal claim. The employee faces several important obstacles to doing so.
First and foremost, the employee cannot advance that constructive dismissal claim against you unless and until he/she has actually resigned from your organization; if he/she fails to do so within a reasonable time following the impugned changes to the job, he/she is deemed to have acquiesced to those changes and to have irrevocably lost the legal right to contest them.
Secondly, even if the employee does resign, he/she runs the risk that the Court may later rule that that resignation constituted a breach of his/her duty to mitigate the damages arising from the constructive dismissal damages, and that no such damages ought therefore to be paid by your organization.
Thirdly, the employee’s claim against you cannot succeed unless, following that resignation, he/she thereafter remains unemployed for a significant period of time; any new employment income that he/she earns in the weeks and months immediately after quitting your organization goes to reducing his/her claim against you.
Finally, and most importantly, even if the employee remains unemployed for many months, the amount of pay-in-lieu of notice that he/she can recover from you is usually capped at the amount prescribed by the termination clause in his/her employment contract; if that termination clause is properly drafted and up-to-date, it will often limit the employee to the statutory minimums prescribed in the Employment Standards Act.
A recent decision of the Ontario Court of Appeal, in Waksdale v. Swegon North America (leave to appeal to the Supreme Court of Canada dismissed, in January 2021), has effectively invalidated the termination clauses in hundreds of thousands of employment contracts across Ontario. For that reason, this fall, all prudent employers should immediately update their employment contracts with their employees by inserting newly worded termination clauses into those contracts. Immediately doing so will dramatically reduce your organization’s termination costs, and constructive dismissal claims, in 2021, 2022 and 2023. Failure to do so will mean that for the next several years, your organization will have to pay exponentially more money each and every time it either constructively dismisses or expressly terminates the employment of, any one of its employees.
