Labour & Employment Law Blog

COVID-19 Vaccination at Work

COVID-19 Vaccination at Work

Recently when I was conducting legal research on an unrelated matter, I stumbled upon a decision from the Ontario Human Rights Tribunal (“Tribunal”) which, although by now is a decade old, is very timely in the issues that it raises given the COVID-19 pandemic.

The facts of Ataellahi v. Lambton County (EMS) 2011 HRTO 1758 are straightforward. The applicant, Mr. Ataellahi, filed an application pursuant to the Ontario Human Rights Code (“Code”) alleging discrimination with respect to employment on the basis of creed. Mr. Ataellahi, a part-time paramedic, alleged that he was discriminated against in shift scheduling, discipline and refusing him work during winter 2010-2011 influenza respiratory outbreaks because he was not vaccinated against influenza.

When asked by the Tribunal to provide with submissions on how the vaccination requirement infringed on his rights the Mr. Ataellahi’s response was that the vaccine policy was being applied inconsistently since, among other things, respiratory outbreaks exist throughout the year and there is no requirement for him to be vaccinated other than during the winter time.

Although the argument was logically appealing, the Tribunal noted that Mr. Ataellahi’s decision not to be immunized was based on certain medical considerations rather than religious belief. The Tribunal has held that what identifies as a creed is a set of sincerely held religious beliefs and practices. Such beliefs need not be based on the edicts of an established church or particular denomination. Relying on the Supreme Court of Canada’s decision in Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 the Tribunal noted that there has to be a connection wherein an individual demonstrates that he or she sincerely believes or is genuinely undertaking “to connect with the divine or as a function of his or her spiritual faith.”

The Tribunal concluded that in the absence of any such religious beliefs or practices influencing the decision to not be immunized, Mr. Ataellahi couldn’t assert that he is being discriminated against on the basis of creed. The Tribunal also stated that it does not have the general power to inquire into all claims of unfair treatment but only those that are specifically based on grounds listed in the Code.

Our Thoughts

It is my opinion that employers should not be able to force employees to be vaccinated for certain diseases including COVID-19 or coronavirus. We live in a democracy and bodily integrity and privacy are of paramount importance. However, some workplaces (such as those in the healthcare industry) may have in place certain additional requirements with respect to the health of its employees.  Ultimately, the aforementioned interests constitute a careful balancing act.

For instance, in the event of an effective vaccine for COVID-19, it is not unreasonable for long-term care facilities to expect those in its employ to undergo immunization for COVID-19. One may of course argue that such a requirement would constitute a de facto imposition of the vaccine but, strictly speaking, the employee is given the right to determine which of their interests prevails. This has to, by necessity, be a personal decision as long as the consequences are well known in advance.

Things get trickier if “regular” employers demand to make vaccination of COVID-19 a requirement of their employees. Would such a requirement be justifiable? I would argue that such a requirement may be justifiable more so in high-density workplaces such as the manufacturing industry; however, what about sporadically occupied large office spaces or places with minimal interaction between co-workers? Would employers be right to impose the immunization requirement then?

Assuming an employee refuses to be vaccinated against COVID-19, should such an employee be terminated for cause? Courts will take on a contextual approach to determine if just cause exists to terminate an employee without notice or compensation. In my view, terminating one’s employment due to a refusal to be suddenly vaccinated should not amount to cause at law per se and, depending on the circumstances, the employee may be entitled to reasonable notice of termination or an appropriate severance package instead in the non-unionized context.

This leads to the final question on when terminating an employee for refusing to be immunized against COVID-19 could result in discrimination. A refusal to vaccinate oneself on the basis of mere political belief is not enough to claim discrimination under the Code. However, consider an employee who actually holds a sincerely-held belief as a result of which immunization would result in a moral compromise? Will science trump religion in such a case or will religion be given a pass even if the job requirements are such that immunization as a condition for continuing employability is reasonable? Similarly, hypothetically speaking an employee may have a Code-protected medical condition that prevents him or her from being immunized. How the law will tackle these concerns remains to be seen.

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.

Legal Receptionist

Zeilikman Law is an employment law firm located in Vaughan, Ontario. We are looking to hire a legal receptionist to join our firm. Preference will be given to candidates who have experience working as a receptionist at another law firm.

Location: Vaughan, Ontario.

Start Date: Immediately.

Hours: Monday to Friday, 9 am to 5 pm. Full time. In-person only. This is not a remote work position.

Wages: 35,000 to 40,000 per year.

Duties and Responsibilities:

  • Manage our firm’s multi-line telephone system to receive incoming calls.  Screen incoming telephone call inquiries to determine the nature of the telephone call and provide standard information related to our legal services.  Take and deliver messages and route incoming telephone calls to the appropriate staff person.
  • Answer general inquiries coming from the firm’s social media and website email.
  • Welcome in-person visitors upon arrival.  Direct visitors to the appropriate staff person and / or office or boardroom.
  • Organize in-person visitor schedule to prevent overlap and multiple bookings.
  • Receive, sort, and distribute daily mail and deliveries.
  • Arrange for couriers.
  • Keep front reception, kitchenette area and boardroom tidy.
  • Perform various clerical duties such as filing, photocopying, and faxing on an as-needed basis.
  • Process client or other payments.
  • May be asked to run minor errands outside of office such as attending post office to arrange a courier or pick up mail.
  • May be asked to assist other law clerks or lawyers of the firm as required and as appropriate.
  • Any other basic administrative duties or tasks as deemed appropriate.

Required Skills:

  • Basic knowledge of general office procedures including filing, faxing, and printing and copying.
  • Basic word processing computer skills.
  • Proficient in receptionist and telephone practices, etiquette, and decorum.
  • Professional attitude and appearance.
  • Excellent organizational skills.
  • Positive customer service attitude is a must.
  • Must be able to maintain confidential and sensitive information.

Education and Experience:

  • Highschool diploma or equivalent.
  • 1 – 2 years’ experience in an office setting with an emphasis in accounting, reception or clerical work is required.   We would prefer experience in a law firm environment.

Applications for this position should be sent via email to jennifer@zeilikmanlaw.com. All applications should include a cover letter, resume and at least two references. Only successful candidates will be contacted.