Does refusing the vaccine constitute a frustration of contract?

As more and more companies opt to mandate vaccines, questions around HR policies are on the rise. HRD spoke to Michael Horvat, partner at Aird & Berlis, who shed some light on the legal issues in Canadian workplaces.

Does refusing the vaccine constitute a frustration of contract?

“If the employee in question had a supported exception to a mandatory vaccination policy – if they have a bona fide medical reason, for example, for not being able to take the vaccine, and there was no alternative accommodation that could be made for them – then this could be a frustration of contract,” Horvat told HRD. “However, I think there's a big hurdle to overcome as far as the employer is concerned. Essentially, they’d have to be able to demonstrate that being fully vaccinated was a bona fide requirement for the position, and that such policy should or could be imposed over a long period of time.”

Read more: COVID-19 vaccination policies mandated in high-risk settings

This in itself is pretty limited. There’s only really a handful of roles and industries in which an employee likely needs to be vaccinated in order to perform at work – such as a nurse or a long-term care facility worker. Many employers have continued their operations during the pandemic, before vaccines were available. This will make it difficult to demonstrate that there is absolutely no alternative, no further accommodation, except having the vaccine.

“It would be difficult to argue that a vaccination is the only answer available to an employer,” added Horvat. “For example, an employee could be subject to regular testing, use an N95 mask or continue remote work. For individuals who simply refuse to take the vaccine on the basis of personal belief – that’s likely not a frustration of contract issue. It would enforcement of a company policy and whether applying that policy would constitute a constructive dismissal or support a dismissal for cause for failing to follow appropriate policy.”

Read more: Alberta mandates WFH under new COVID-19 restrictions

The frustration of an employment contract isn’t easy to prove – nor can an employer just immediately claim frustration. As Horvat told us, frustration of contract based on a medical restriction is not just considered in the short-term. The courts often give an employee upwards of three (or more) years before frustration can be asserted on a medical basis.

Is an employer liable for an allergic reaction to the vaccine?

If an employer mandates the vaccine, and then one of their employees has an adverse reaction to it, would that employer be liable for any injuries? Would workers compensation cover the costs? Well, according to Horvat, it’s quite unlikely.

“I don’t believe that workers comp would cover a bad reaction to the vaccine,” he told HRD. “If there's an adverse reaction to the to the vaccine that results in an absence, this would more likely be covered by short-term or long-term disability, or sick leave policies. It’s unlikely to be considered a ‘workplace injury’. For the employer to be held liable, they would have to be seen to have been negligent.”

What constitutes refusal for ‘religious reasons’?

“The biggest question is the division between those individuals who refuse the vaccination on the basis of a personal decision as opposed to those persons who may have a bona fide medical or religious objection for not accepting the vaccine,” explained Horvat. “For instance, some churches have documented their objection to particular versions of the available vaccines, but have not, at the same time, objected to all of them.   The objections have been limited, permitting their congregations to take other versions of the vaccine. A broad objection to any vaccination on religious grounds has not been given public support by any faith of which I am aware.”

Can an employee refuse to return to work?

“An employee has a right to refuse work if they if they have reasonable grounds to believe that the work is dangerous,” Lorenzo Lisi, partner at Aird & Berlis, told HRD.

Under health and safety legislation, employees have the right to refuse work if they have a reasonably held belief that the workplace poses a threat to their health and safety, or what is known as a “work refusal”.  Lisi told HRD that the first response should be to address all of the safety precautions with the employee to try and demonstrate that the safety concerns have been addressed – from here, if the employee continues to refuse, an investigation could take place.

Recently, HRD caught up with Lisi again, who revealed some emerging concerns for Ontario employers in regards to vaccine passports. Find you the legal ramifications of refusing a COVID certificate here.