Is it legal to fire someone because they're unvaccinated? It depends on the circumstances, lawyer says

The Victoria provincial courthouse as seen on November 3, 2021. (CTV News)

Jim Wu is getting a lot of calls about vaccines these days.

"It has not died down," said Wu, an employment lawyer for Forte Law.

"We've been getting more and more inquiries … The biggest question we have heard is, 'Is it legal to fire someone because they're unvaccinated?' And the answer we give is, 'There is no single answer.'"

Almost all of the cases that have made it through Canada's court system so far have answered that question with a "yes," Wu told CTV News, but there are more cases still making their way through the courts, including three wrongful dismissal lawsuits in B.C.

Such cases tend to hinge on the specific facts of the employee's dismissal, Wu said, noting that it can take months or even years for cases to get a trial date, and that 90 per cent of all lawsuits settle out of court rather than going to trial.

While many employers with vaccine mandates for their employees say they expect the policies to be temporary, Wu said the eventual end of such mandates wouldn't have any bearing on the cases themselves.

Courts will look at the circumstances that were in place at the time an employee was fired, he said.

"I think, ultimately, the question - for employers and employees - is to maintain communication and have a very clear agenda as to why are you having this policy?" Wu said.

"Because ultimately, what will be successful (in court), in my opinion, will be how strong of a connection there is between the mandatory vaccination policy and the employer being able to provide a safe workplace."

B.C.'s Human Rights Code protects people from discrimination on the basis of religion or disability, so employees with legitimate religious or medical reasons for not getting vaccinated could be successful at the province's Human Rights Tribunal if they were fired for non-compliance with a vaccine mandate, Wu said.

However, the law places the burden on the employee to inform their employer of their religious or medical needs and engage in a conversation about reasonable accommodation. An employee who never mentioned a religious or medical reason preventing them from getting vaccinated to their employer would have a harder time proving that they were discriminated against, according to Wu.

And the three lawsuits that have been filed in B.C. so far are not alleging discrimination, but rather a breach of contract by the employer, Wu said.

"They're also in the very early stages, we don't have a decision yet," he said. "So we don't know at this time which way the courts will rule."