Vaccine mandates can be an employer’s downfall

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

Vaccine mandates have permeated virtually every industry. In the summer and fall of 2021, public effort to ensure employees were vaccinated was robust. I have written, time and again, about the termination of unvaccinated employees from various organizations including the TTC, the City of Toronto, and the federal government.

The biggest disrupter in 2021 workplaces has been the advent of the vaccine mandate.

 

We as consumers have felt the impact of vaccination mandates as we cruise aisles of empty shelves in our grocery stores.

 

Just last week Canadians watched the trucking industry’s frenzied response to a federal flip flop on the vaccination status of truck drivers. While it appeared that truck drivers may be exempt from cross-border vaccination requirements, the government confirmed truck drivers would not be exempt causing significant disruption and labour shortages.

 

Vaccine mandates have permeated virtually every industry. In the summer and fall of 2021, public effort to ensure employees were vaccinated was robust. I have written, time and again, about the termination of unvaccinated employees from various organizations including the TTC, the City of Toronto, and the federal government.

 

Unvaccinated employees faced stark consequences. Vaccinate or relinquish your career; ever so slowly, through unpaid leaves and eventual termination, sometimes for cause. The mandate from on high to summarily discard unvaccinated workers emboldened private businesses to follow suit. While severe, the imposition of these mandates seemed to be the only option.

 

All of that has now changed. Omicron does not seem to discriminate between vaccinated and unvaccinated workers. Most of us know one or several vaccinated people who now have COVID. In a bizarre twist to this COVID tale, vaccination status is, for the moment, not all that relevant.

 

Despite this, employers continue to march forward in a vacuum, imposing vaccine mandates, as well as harsh consequences for non-compliance. That is to say, in the age of Omicron non-vaccinated workers are being terminated for cause, or suspended without pay, and being subject to other punitive measures. Meanwhile, new variants have clearly evolved beyond the limitations of the current vaccines.

 

While vaccine mandates have improved vaccination numbers in many workplaces, employers must be careful not to unfairly castigate unvaccinated workers. My firm routinely meets with employees who are subject to unpaid leaves and other severe sanctions that provide obvious grounds for constructive dismissal claims.

 

Employees who work from home exclusively, in particular, can raise legitimate grounds for constructive dismissal when vaccination mandates threaten termination or other unpaid forms of discipline.

 

Prudent employers would be wise to impose mandates that focus on the health and safety of workers in the workplace but also allow practical solutions for workers who can work remotely or autonomously.

 

To the extent that employers feel they need to part ways with non-vaccinated workers because the nature of their work requires vaccination, they should resist imposing harsh measures like unpaid leaves or terminations for cause.

 

The bar to pass for a cause termination is extremely high and terminating employees without offering them fair severance packages may land you in hot water. Imposing disciplinary measures may attract increased legal liability, cause labour disruption in your workplace, and lower company morale. So tread carefully.

 

On to your questions from this week:

 

Q. My company imposed a vaccine policy in December that allowed for medical exemptions. I have provided medical documentation since I have an allergy to vaccines. My employer said my medical documentation was not enough and has threatened to place me on unpaid leave of absence. I work remotely, and I am not sure what I am supposed to do. Do you have any advice?

 

A. The Ministry of Health requires that specific information be provided if an allergy is the basis for your request for a medical exemption. For example the medical documentation should confirm you have discussed immunization options and that your physician considered available mitigation strategies. Ask your employer for the specific information you require to satisfy their expectations. If your role enables you to work 100% remotely, you should confirm in writing to your employer that you do not agree with being placed on an unpaid leave of absence, and seek legal advice if your employer proceeds to remove you from the workplace.

 

Q.. I have an employee who works on my team who never gets through a two-week period without multiple requests to leave early. Sometimes, it is time off for appointments, other times it is “emergency” based. This employee has still received a full 40 hours of pay each week, while working, maybe, 33 hours. I am having trouble managing my expectations when there is always drama surrounding this employee. What is the best way to handle the situation?

 

A. Employers are entitled to work in exchange for pay. If employees need time off for appointments and for unexpected issues, they may be accommodated (and sometimes have to be pursuant to human rights legislation), but they are not entitled to pay as a result of these workday disruptions. Ask your employee to do their best to book appointments on off-work hours if possible as their absence can be disruptive. Tell your employee that while you may continue to accommodate some employee appointments during the workday, they will be on an unpaid basis. When employees are no longer compensated for frequent workplace disruptions, often the workplace disruptions stop.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

More In The News

Social media poses serious threat to litigation

Trials are meant to be conducted in a vacuum. Witnesses are not permitted to hear the evidence given before them to ensure their own evidence won’t be influenced in anyway. That’s virtually impossible to achieve given the wild popularity of the Johnny Depp trial. The internet is chock full of evidence and opinions about the case.

Read More