Certificates are coming – but HR must proceed with caution
With Premier Ford’s announcement that Ontario would be rolling out vaccine passports for recreational activities, HR leaders have once again been left scratching their heads. The mandate requires any entrant into bars, restaurants, event spaces, and gyms (to name a few) to show a certificate at the door. But what of the employees working within these organizations? Can an employer legally insist on a certificate from staff? And, if so, what happens if a worker refuses?
“So far, the Ontario Government’s announcements of a vaccine passport requirement apply to persons who want to visit or enter certain types of public establishments or settings, but not to the employees of those workplaces,” Peter Straszynski, partner at Torkin Manes LLP, told HRD.
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“An employer may require a vaccine passport of its employees, the same way an employer can require mandatory vaccination in the workplace. There’s really not any material difference between the two. Having said that, employers should consider whether such a requirement is appropriate for their workplace and, importantly, must remember that there are exceptions where employees may have legitimate medical or other ground to refuse to vaccinate - and consequently to register for a passport.”
Emerging legal grounds
This is all very new ground for both employers and employees – however, as Straszynski advised, that’s not an excuse to make generalisations or assumptions. Importantly, while employees might well have a right to decline the vaccine and the passport, HR needs to look into whether or not the reason given is protected by law. This may include religious beliefs, medical grounds, or disabilities.
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“Objections based on grounds protected by human rights legislation may require accommodation by the employer to the point of ‘undue hardship’,” added Straszynski. “Where an employee’s objection is based on a reason that does not reflect a legally protected ground, employers may choose to terminate employment for non-compliance, but they should reasonably expect that such a termination will be ‘without cause’ and will require payment of appropriate termination pay in the circumstances.”
Fired for refusing?
The law around terminating an employee’s contract over a refusal to be vaccinated, and as such register for a COVID certificate, is highly contentious. Even if an employer does decide to terminate an employee – it’s not a cut and dry situation. Speaking to Straszynski, he doesn’t believe that such a termination could be upheld for ‘just cause’ – unless however, that vaccination is mandated by law.
“We’ll have to see as these types of terminations happen, and get litigated,” he told HRD. “There are no crystal balls or super clear answers to these questions right now.”
There’s a plethora of questions out there for Canadian HR leaders right now – encompassing everything from termination rights to mandated vaccination policies. HRD spoke to Lorenzo Lisi, partner at Aird & Berlis, who helped solved some of the more pressing issues here.