ESA Termination and Severance Liabilities Where an Employee is Not Vaccinated Against or Tested For COVID‑19

This section of the Policy and Interpretation Manual sets out the Employment Standards Program’s policies about ESA termination and severance liabilities where an employee is not vaccinated against COVID‑19 or tested for COVID‑19 in accordance with the employer’s policy.

Note:

  • Issues regarding whether an employer can mandate vaccinations and/or testing and the limitations of such policies fall outside of the scope of the ESA. This includes:
      • whether an employer can make the vaccination and/or testing mandatory for its employees
      • what, if any, accommodations are necessary for employees who are unable or unwilling to be vaccinated for medical or other reasons; and
      • whether the employer can ask an employee if they are vaccinated or to provide proof of vaccination.
  • Other laws that the ES Program does not administer - such as the Human Rights Code and/or the Occupational Health and Safety Act - may also be relevant to the issues addressed in this document.
  • In addition, employees may have greater rights than what the ESA provides under an individual employment contract or collective agreement, other laws, and/or pursuant to the common law.

Summary

The ESA does not prohibit employers from terminating employees for failing to get vaccinated against and/or tested for COVID‑19. With respect to the ESA’s termination notice/pay and/or severance pay requirements, if an employer terminates an employee for this reason, it is Program policy that:

  • written notice from the employer stating that the employee will be terminated on a particular day if the employee is not vaccinated can, if done correctly, count towards the ESA’s required notice period.
  • the wilful disobedience exemption to the termination and severance pay obligations may apply where an employee does not comply with the employer’s vaccination and/or testing policy.
  • whether or not the imposition of a policy requiring vaccination and/or testing  constitutes constructive dismissal under the ESA will depend on the circumstances. 
  • The ESA does not prohibit employers from suspending employees who are not vaccinated against and/or tested for COVID‑19 out of concern that the employee might expose others in the workplace to COVID‑19. Such employees may have rights to paid or unpaid infectious disease emergency leave (IDEL) during their suspension. See the discussion of IDEL for information.

Vaccination / Testing issues

Issue 1 : termination / severance of employment

An employer is not prohibited from terminating an employee under the ESA because the employee isn’t vaccinated, refuses to be vaccinated, and/or refuses to be tested

  • The ESA does not prohibit an employer from terminating an employee because the employee is not vaccinated, because the employee refuses to be vaccinated, or because the employee refuses to be tested. This is because not being vaccinated and refusing to be vaccinated or tested are not protected activities listed in s. 74 (the main anti-reprisal provision) of the ESA.
  • Employees cannot take unpaid infectious disease emergency leave (IDEL) and go on leave indefinitely for refusing to comply with the employer’s vaccine or testing policy
  • The ESA does not prohibit an employer from terminating an employee because the employee is not vaccinated, because the employee refuses to be vaccinated, or because the employee refuses to be tested.  This is the case even if the employee is on IDEL or on any other leave at the time of the termination. 
    • Note that if, for example, instead of terminating the employee, the employer initially chose to direct the employee to not come into work until the employee is vaccinated (or tested), out of a concern that the employee may expose others in the workplace to COVID‑19, the employee would be entitled to unpaid IDEL (and paid IDEL if the other eligibility criteria were met). 
  • The ESA does not prohibit the employer from subsequently terminating the employee for being unvaccinated, even if the employee is on unpaid or paid IDEL for this reason (or for a different reason).  The employer terminating the employee for being unvaccinated does not constitute a reprisal because the reason for the termination is not because the employee is on a leave, but rather is because the employee is not vaccinated, which is not protected by s. 74 of the Act.

Employees who are terminated because they are not vaccinated and/or not tested may or may not be entitled to termination and/or severance pay under the ESA – it depends on the circumstances

  • Whether an individual employee is entitled to termination and/or severance pay under the ESA is determined on a case-by-case basis. 
  • The Program policy on how the ESA applies in three scenarios that have arisen is as follows:

Scenario 1: An employer gave an employee a written ultimatum providing that the employee had until a specified date to get vaccinated and stating that the employee would be terminated if not vaccinated by that date. The employee was not vaccinated by the specified date and was terminated.  The employee files a claim for termination pay.

Question:  Does written notice from the employer that the employee will be terminated on a particular day if the employee is not vaccinated count towards the ESA’s required notice period?

Answer:  Yes, so long as:

  • the employer provides notice in writing clearly indicating that the employee must be vaccinated by a particular date and it is clear that if the employee does not do so the employment relationship will end, and
  • the employer satisfies the ESA’s s. 60 requirements during the statutory notice period.

Analysis

As set out in the discussion of s. 56 of the ESA,  it is Program policy, as per the Wronko decision of the Court of Appeal, that written notice that is conditional on the employee’s acceptance of a change of a term and condition of employment can constitute notice for the purposes of the ESA, so long as it clear that a refusal to accept the change on that date will end the employment relationship.  (This is to be distinguished from written notice that is conditional on an event occurring – which does not constitute notice for the purposes of the ESA. An example of this is where the employer tells an employee that the employee’s employment will be terminated if the employer does not win a contract. For further information, please refer to the discussion under ss. 56(1) of the P&I Manual.

As such, if an employer provides clear written notice that employees who refuse to accept the terms of a vaccination policy by getting vaccinated by a specified date will be terminated (and satisfies the s. 60 requirements that apply during the notice period), the notice counts towards the employer’s ESA notice of termination obligations. (Severance pay may still be owing to eligible employees. However, see Scenario 2.)

Scenario 2: An employee was terminated because the employee did not comply with the employer’s vaccination or testing policy. The employee files a claim for termination and/or severance pay.   

Question: Does the wilful disobedience exemption to the termination and severance pay obligations apply?

Answer: Consistent with the Program’s policy regarding the application of the wilful disobedience exemption, the exemption may apply.     

Note: the answer below applies equally to the situation where the employee was terminated because the employee did not comply with the employer’s policy that required the employee to get tested for COVID‑19.  This is the case whether the policy requires the employee to either be vaccinated or get tested, both vaccinated and tested, or only get tested.

Analysis

The criteria that the Program applies when determining whether the wilful disobedience exemption in O. Reg. 288/01, ss. 2(1), para. 3 and ss. 9(1), para. 6, apply are set out in the discussion of O. Reg. 288/01, ss. 2(1), para. 3. 

The criteria, and their applicability to the scenario of termination because of non-compliance with an employer’s requirement to be vaccinated, are:

  • The order or rule must have been clear and unequivocal.
    • This is a factual determination.
  • The order or rule must not be minor (except perhaps in cases of repeated, uncondoned infractions)
    • It is Program policy that a policy requiring vaccination against COVID‑19 is not a minor rule, because of the significance of the pandemic including the very serious health implications of COVID‑19,  the importance of employers’ ability to establish rules it considers appropriate for the management of COVID‑19 and the potential for significant impact on a employer’s business if an employee spreads COVID‑19 in the workplace or to the employer’s clients. (Even if the rule was considered to be minor, it is Program policy that a continuation of the employee’s failure to be vaccinated or tested constitutes repeated infractions.)
    • As such, it is Program policy that this criterion will be met in every case.
  • The order or rule must have been communicated to the employee.
    • This is a factual determination.
    • There is no requirement that the communication be in any particular form - it can be orally or in writing (including electronically).
  • The employee must know (or ought to know) in advance that the disobedience could lead to his or her termination
    • This is a factual determination.
  • The order or rule must not require the employee to do anything illegal or unsafe.
    • Because any policy requiring vaccination is made for safety reasons, and in light of the scientific evidence about the safety of COVID‑19 vaccines, it is Program policy that this criterion will be satisfied in every case except where the employee has a medical reason, supported by evidence from a physician, for not getting the vaccine.
    • This criterion will be met with respect to employees who are not vaccinated because they object to the vaccine for religious or other non-medical reasons. The act of getting vaccinated is not illegal or unsafe even if the employee has religious or other non-medical objections against receiving it.

Although an employee who objects to being vaccinated for religious reasons may believe that the employer is contravening the Human Rights Code when requiring the employee to be vaccinated, the ES Program does not take Human Rights Code reasons into account when assessing under this criterion.  Whether the employer’s rule or its application (e.g., whether the employer met its duty under the Code to accommodate) contravenes the Code is not a matter for the ES Program. An employee who is terminated and who objects to the vaccine for religious reasons may have a remedy through the Human Rights Code.

  • The employee’s conduct is not trivial
    • For the same reasons set out under the “rule must not be minor” heading, it is Program policy that the employee’s failure to get a vaccine as required by the employer is not trivial and that this criterion will be satisfied in every case.
  • The EE’s conduct has not been condoned by the ER
    • This is a factual determination.

“Wilful”

  • A key element to this exemption is that the actions or omissions must be wilful on the part of the employee.
  • As set out in the discussion of this exemption under O. Reg. 288/01, s. 2, para. 3, “ordinarily, ‘wilful’ means that the employee intended the result that came to pass.  Thus, poor work or conduct that is accidental or involuntary will generally not be considered to be wilful.  However, an employee who is reckless in his or her conduct may be [found to have engaged in wilful disobedience] if that employee knew or ought to have know that his or her conduct would cause the result that came to pass.”
  • Whether or not an unvaccinated employee’s failure to be vaccinated is wilful is a factual determination, although in the circumstances of a vaccination requirement this criterion is likely to be met in most cases. 
    • It would not be met only in circumstances such as where the employee was sick or similarly unable to leave home to get the vaccination, the employee could attend the vaccination site but was unable to get vaccinated for reasons out of their control (e.g. if there was a shortage of vaccines and the employee was unable to get one), or the employer did not provide enough advance notice of the requirement to get vaccinated for the employee to make the necessary arrangements.
    • The wilful criterion will be met where an employee did not get the vaccine because of religious reasons. An employee who does not get a vaccine for religious reasons and is terminated for non-compliance with a vaccination policy may have a remedy through the Human Rights Tribunal.

Note:

  • In the context of collective agreements, a rule unilaterally introduced by the employer (and not subsequently agreed to by the union) needs to pass a test of “reasonableness”.  The reasonableness standard does not apply in the context of this ESA exemption in the non-unionized context.  In the non-unionized context, the relevant ESA criterion is that the rule or policy cannot require the employee to do anything illegal or unsafe. The reasonableness of the rule is not at issue.  As such, context-driven questions that arbitrators may take into account when assessing whether an employer’s vaccination policy is reasonable - such as the whether the employee works with vulnerable groups, the extent of local community spread, the vaccination rate in the workplace, the availability of other options to mitigate the risk of COVID‑19 such as working from home, physical barriers or distancing, the frequency of contact an employee has with others, or whether the employee works from home - are not relevant here.
  • Depending on the circumstances, the frustration of contract exemptions may also apply, as the situation may be akin to the Loss of Essential Licence scenario addressed in the discussion of this exemption in Reg. 288/01, s. 2, paragraph 4 of the Manual.  Note, however, that one of the conditions that must be met in order for a contract to be frustrated is that the event or circumstance was caused through no fault of the parties and as such, there will not be frustration if the employer decides on its own accord – without being required to by law or, for example, by a  client of the employer - to implement a mandatory vaccination policy.  ES Program staff are asked to contact the Employment Practices Branch for assistance  if the argument that the contract has been frustrated is made in a claim investigation.  
  • Whether the employer’s imposition of a vaccination policy constitutes constructive dismissal under the ESA depends on the circumstances

Scenario: An employer imposed any of these vaccination policies:

  • unvaccinated employees will be terminated
  • unvaccinated employees will be placed on leave (either paid, unpaid, or a combination of paid and unpaid)
  • unvaccinated employees will be required to work from home
  • unvaccinated employees will be required to undergo regular COVID‑19 testing (either at their own expense, or at their employer’s expense, and on their own time or on paid time).

The employee resigned in response to the policy within a reasonable period.  The employee files an ESA claim for termination and/or severance pay, asserting that the policy constituted a constructive dismissal.

Question: Does the imposition of any of those vaccine policies constitute a constructive dismissal?  

Answer: It will depend on the facts.  

Note also that – as described earlier in Scenario 1 above – the employer may satisfy its ESA notice of termination obligations, rendering the constructive dismissal issue moot, if it provides notice in writing clearly indicating that it will be changing the employment contract at a future specified date by adopting this type of policy and it is clear that the employment relationship will end if the employee does not adhere to the policy  - and satisfies the s. 60 requirements during the statutory notice period.  In this case the employer is considered by the Program to have effectively provided notice of termination with an offer of re-employment on new terms and conditions.

Analysis

The following criteria must be met to establish a constructive dismissal as a result of a change to the employment contract:

  • the change is made unilaterally by the employer, i.e. without the employee’s agreement.
  • the change is to a fundamental term or condition of the employee’s employment.
  • the change is substantial and to the employee’s disadvantage.

With respect to the first criterion, terms and conditions of employment may be implicit or explicit. 

If the employment contract contains an explicit right for the employer to implement the policy at issue, the first criterion will not be met and as such the implementation of a mandatory COVID‑19 vaccine / testing policy would not be done “unilaterally” so as to form the foundation for a constructive dismissal claim.

As the vast majority of employment contracts do not contain an express provision granting the employer the right to impose such a policy, the key issue will be whether there is an implied term.

The Occupational Health and Safety Act requires an employer to take every precaution reasonable in the circumstances to protect a worker (s. 25(2)(h)). This includes not only the employee but other employees with whom they come in contact.  

Whether this general duty creates an implied right to impose a vaccination / testing policy will be determined on a case-by-case basis.  For example, in a workplace where there has been a history of outbreaks, where employees have to work in close proximity, or the consequences of an outbreak are high (e.g. a long-term care home), it may be that there is an implied right to impose a vaccination / testing policy.  Conversely, in a workplace where there have been no COVID cases and employees can be socially distanced or work outside, it may be that there is no implied right to impose a vaccination / testing policy. 

ES Program staff are asked to contact the Employment Practices Branch for assistance when investigating claims from employees who claim constructive dismissal on the basis of a vaccination / testing policy.

Issue 2: suspension of employees

  • Under the ESA, an employer is not prohibited from suspending an employee because the employee is not vaccinated, telling an employee not to come to work until vaccinated, or not scheduling that employee to work until vaccinated out of a concern that the unvaccinated employee may expose others in the workplace to COVID‑19
  • The ESA does not prevent an employer from temporarily reducing or temporarily eliminating an employee’s hours of work because the employee has not been vaccinated.  This is the case whether or not the reduction/elimination is in the form of a disciplinary suspension.
  • Where an employer directs an employee not to perform their duties until the employee has been vaccinated, out of a concern that the unvaccinated employee may expose others in the workplace to COVID‑19, the employee is entitled to IDEL: up to 3 days of Paid IDEL (if the other qualifying criteria are met, and during the period that Paid IDEL is available) and an unlimited number of days of Unpaid IDEL.  (Note that “regular” Unpaid/Paid IDEL is the default in this circumstance versus “deemed” Unpaid IDEL.  See ss. 50.1(1.7) of the ESA for more information).  Employers may apply to the WSIB for reimbursement for payments made pursuant to the Paid IDEL provisions – see s. 50.1.1 of the ESA for more information.

Temporary layoff and Constructive Dismissal

  • An employee who is on a temporary layoff (as defined in the ESA) that exceeds the maximum length set out in the ESA (a period of either 13 weeks in 20 or 35 weeks in 52, depending on the circumstances) is terminated and/or severed under the ESA. 
  • However, the temporary layoff rules have been modified by O. Reg. 228/20 for non-unionized employees in certain COVID‑19 related situations.
  • Per O. Reg. 228/20, during the defined “COVID‑19 period”, a non-unionized employee whose employer has temporarily reduced or temporarily eliminated their hours of work for reasons related to COVID‑19 (which includes the employee not being vaccinated against COVID‑19):
    • is not considered to be laid off under the ESA, and
    • is not considered to be constructively dismissed under the ESA

(Note: Although the rules that apply during the COVID‑19 period also provide that non-unionized employees whose hours are temporarily reduced or temporarily eliminated for reasons related to COVID‑19 are deemed to be on unpaid IDEL, it is ES Program policy that the employee is entitled to “regular” paid and unpaid IDEL if the reason for the reduction/elimination is the employer’s concern that the employee may expose others in the workplace to COVID‑19.  Note, however, that in this situation the rules in Reg. 228/20 about ESA layoffs and constructive dismissal still apply even if the employee is on “regular” IDEL rather than “deemed” IDEL.)

  • Note that the ESA does not address issues about health and safety in the workplace nor does it address employers’ authority to exclude employees from the workplace.  As such, the question of whether it would be appropriate, or lawful under other laws, for an employer to exclude an employee from the workplace for not being vaccinated against COVID‑19 is not a matter for the ES Program.