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THE QUESTION

I’m a manager at a consulting company and much of our work revolves around evidence-based research, advising our clients based on facts from reliable sources. I have an employee that I have been clashing with for a while now. His performance is mediocre but he’s never done anything to warrant a termination. I recently found out he’s waiting to get vaccinated to “see how things go”. After years of not really getting along with him, his vaccine hesitancy has put me over the edge. Evidence-based research is a pillar of our work and I don’t feel confident in him to do this work for our company any more. If I state this to my director as a reason to terminate him, would that get us in trouble?

THE FIRST ANSWER

Laura Williams, founder and managing partner of Williams HR Law LLP, Markham, Ont.

Vaccination is a contentious subject these days, and some employees’ stances on it have triggered employers to consider ending employment relationships. Unless there is a human rights-related reason (i.e. disability or creed/religion) why an employee cannot be vaccinated, employers can terminate employment based on vaccination status, and we’ve seen this happen across industries in the past weeks, particularly where employers have implemented mandatory vaccination policies.

While employers can terminate employment at any time for any non-discriminatory reason, employees are entitled to notice of termination (or pay in lieu thereof) unless they have committed wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer – a very high standard.

If this employee is choosing to not be vaccinated, terminating his employment is not discriminatory, but he would be entitled to notice, and the amount would depend on factors including whether there is a written employment agreement in place with an enforceable termination clause. Additionally, if other unvaccinated employees are not being treated in the same manner, there is a risk that the employee will claim he is being unfairly targeted. Finally, using vaccination status as a reason to terminate employment in this case may create distrust due to perceptions that the employer is not being transparent about its intentions regarding vaccination, and this could negatively affect employee morale.

Given how contentious vaccination is, and how nuanced termination-related risks can be, employers in this situation would be well-advised to seek specific legal advice.

THE SECOND ANSWER

Pamela Connolly, lawyer, Ukrainetz Workplace Law Group, Vernon, B.C.

Many employers and employees have found themselves at odds around the highly polarizing issues that have arisen during the COVID-19 pandemic, with vaccination status being particularly challenging.

Employers have broad discretion when determining whether to terminate employment, provided that their decision is not based on considerations which violate human rights legislation or anti-retaliatory laws (e.g. firing an employee who is raising health and safety concerns or violations of employment standards requirements). Unless an employee’s unvaccinated status is the result of a legitimate medical or religious exception, it will not be protected by human rights legislation. In your case, it sounds like the employee is choosing to remain unvaccinated out of caution, rather than a human-rights based reason. Therefore, if your company decides to terminate his employment as a result of his COVID-19 vaccination status and viewpoint, it is unlikely to violate his human rights or be legally considered retaliatory.

In most workplaces, an employee’s refusal to be vaccinated or share their vaccination status does not qualify as just cause for termination. If you decide to separate employment, the company will be required to provide an appropriate severance package which meets the Employment Standards requirements in your province and any contractual or common law entitlements, if applicable.

While you may be able to terminate employment quite safely with a thoughtful approach, I question if that decision aligns with your company’s values and goals. It may, since your employee’s personal beliefs could undermine the company’s reliance on evidence-based research. However, vaccination status is part of an important discussion around workplace health and safety and community responsibility. As a company, you will need to decide if you will implement a practice of terminating employment where there are differences of opinion.

Diversity and inclusivity are important components of robust human resource policies. Tolerating conflicting viewpoints and perspectives may ultimately serve to strengthen your organization. You may be able to adequately protect your workforce with strong health and safety protocols and provide employees with information and encouragement to vaccinate, rather than exiting unvaccinated employees.

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