Can I fire an employee for refusing a COVID-19 test?

Can HR legally end a contract? Turns out you have to tread very carefully

Can I fire an employee for refusing a COVID-19 test?

As more and more employers look to mandate their vaccination policies, questions around employee rights continue to rise. The big issue of the day is currently testing – and how far employers can go in drafting their mandatory policies. HRD spoke to Mike MacLellan, partner at Crawford Chondon & Partners LLP, who shed some light on whether or not an employer can fire an employee for refusing to partake in a COVID-19 test.

“In Canada an employer can fire any non-union employee it wants, whenever it wants, for whatever reason it wants,” explained MacLellan. “Or for no reason at all, so long as the termination is not discriminatory, and so long as the employee received appropriate notice or pay in lieu of notice pursuant to their contract. So, essentially yes, an employer can terminate an employee because they refuse to get tested.”

According to the Occupational Health and Safety Act, Canadian employers have a duty to take precautions to ensure the protection of an employee. If an employee refuses to be tested for COVID, and this mandatory testing is a requirement of entering the workplace, then the employer can take action.

Recently, Ottawa’s Catholic School Board announced that any employees who refuse to be tested at work could be fired.

“If they do not comply with mandated rapid antigen testing, or if they do not comply with our other mitigating factors —proper hand hygiene, wearing a mask, etc.  — they can't be in our schools," Tom D'Amico, the Catholic board's director of education, told CBC.

But is this really legal? Well, according to MacLellan, there’s various factors HR leaders need to consider before making any sudden moves.

“The employer may be able to take a ‘just cause’ approach to terminate without notice or pay in lieu of notice, but there has to be sufficient reason to consider the employment relationship irreparably damaged,” he continued. “Refusal to abide by a workplace policy can constitute just cause. Refusal to get tested – as opposed to refusal to get vaccinated – pursuant to a workplace policy may be a strong reason to terminate for just cause, especially in industries where the government has mandated vaccination policies and regular rapid covid testing.

“However, if an employer outside of those more high-risk settings might also look into alternatives that could be less risky, like putting the employee on an unpaid leave of absence or requiring that they work remotely and if that means less work, then reducing pay accordingly.”

Perhaps a more pertinent question is whether or not an employer should go through the motions of termination. If an employee refuses to be tested, if they refuse to come into work, they could be seen to be infringing on their employment contract. As such, employers are well within their rights to stop paying them. However, if an employee refuses to be tested, is accordingly sent home, and then decides to come into work anyway – that would be grounds for a disciplinary.

“A typical policy will dictate that employees who don’t produce a negative COVID-19 test when required can’t attend for work,” added MacLellan. “A worker who refuses to be tested obviously won’t be able to produce a negative test – and, according to the policy, that employee will not be able to attend work and will not be paid. If they’re willing to stay home without pay, does the employer gain anything by terminating them? 

However, if an employee refuses to be tested, are told to stay home without pay, but then try to attend for work anyway – then you have a whole new issue. This should attract a disciplinary response for insubordination and exposing the workplace to a health and safety risk.”

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