How will unvaccinated employees be treated as COVID mandates vanish?

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

He said in a recent interview: “I understand that not being vaccinated I am unable to travel to most of the tournaments at the moment. Yes, that is the price I am willing to pay.”

Even if you patronize the world of sport only on occasion, Novak Djokovic is no stranger to you.

 

He’s a grand slam champion 20 times over, sharing that rarified air with only Roger Federer and Rafael Nadal.

 

Djokovic stood to be the greatest of all time in the open era of men’s tennis.

 

But one thing stands in his way: COVID-19.

 

Djokovic isn’t vaccinated.

 

The star player has stirred up COVID controversy, refusing to get vaccinated, but claims he isn’t an anti-vaxxer.

 

He said in a recent interview: “I understand that not being vaccinated I am unable to travel to most of the tournaments at the moment. Yes, that is the price I am willing to pay.”

 

In fact, the tennis icon started the year off by being ousted from the Australian Open due to his vaccination status, unable to defend his title. He was required to stay in an immigration detention hotel and was deported from the country after his visa was cancelled twice.

 

Djokovic is prepared to miss upcoming grand slams like the French Open in France and Wimbledon in the United Kingdom, both of which currently require all players to be vaccinated.

 

The fact is, the world No. 1 has sidelined his career.

 

Many workers in Canada have done the same, putting their employment on the line in response to orders from their employers to get the shot.

 

But the tides on COVID-19 mandates are changing once again.

 

We know that Ontario will ease most restrictions and vaccine mandates as of March 1. That means, even if you aren’t vaccinated, you’ll again be able to enjoy a lot, if not all, of the privileges you once did.

 

That said, private organizations may continue to mandate vaccinations and require them from employees or patrons.

 

But since enforcement of these mandates has been left on the shoulders of small business and employers, the removal of these requirements will likely be a welcome change.

 

What does the removal of vaccine mandates for the province mean for employment law?

 

Over the past two years we’ve all been singing from the same songbook: “Get vaccinated and save your job.”

 

My sense is employers will be less likely to entangle themselves in red tape if they don’t need to.

 

Employers will move away from strict adherence to get back to business.

 

A freer society is on the horizon, but there is scar tissue to address.

 

What is left are all the unvaccinated workers who’ve been terminated in the past two years.

 

Some have been terminated with little or no pay.

 

Some have been suspended or placed on indeterminate unpaid leave.

 

Now that the vaccine mandates are set to drop, the reasonableness of these actions will be judged through a different lens in the courts.

 

It won’t be long before unvaccinated workers can resume most of the ordinary duties they previously performed.

 

Employers that required in-person work throughout the pandemic have already arranged for the requisite testing and other protocols to increase safety in the workplace.

 

While only a month ago it seemed wholly reasonable for Djokovic to have been sent home from the Australian Open, I wonder if within a few short months his denial to compete in the French Open will get the same response.

 

The dropping of vaccination mandates signals to businesses that they can move forward without the bureaucracy that handcuffed them over the past two years.

 

Employers that have taken a harsh stance with respect to terminations or unpaid leaves for unvaccinated workers should pause and re-evaluate how their actions now may be perceived in the future.

 

Now, on to your questions for this week:

 

Q. The company I work for has been sold. My employer told me that there should be around two to three months of work left, but after a few weeks it seems as though most of the work has dried up. It looks as though I will soon be out of a job. What are my options?

 

A. Upon the sale of a business, your employer may offer you the opportunity to work for the new company that has purchased your employer’s business. When that happens, your new employer is expected to provide you with the same or substantially similar terms of work that you currently enjoy. If you are not offered new employment, you may receive a termination package prior to the close of the sale of your employer’s business. If you are unclear about what your options are, ask your employer whether or not you should be expecting a termination package or a job offer from the new business owners. If you do receive a new job offer, you will want to look out for key terms, including recognition of your previous years of service, similar salary, incentive pay, benefits and pension.

 

Q. My partner and I have provided landscaping services to a company for about twenty five years. When we joined, we signed an independent contractor agreement. We have our own office there, company email address, the company purchases all of the equipment we require to do our jobs and we even attend the company’s summer retreats and holiday parties. Our contract has just been terminated and the company claims that it only needs to provide us with two weeks’ pay, in accordance with the terms of the independent contracting agreement we signed twenty five years ago. Is this legal?

 

A. You and your partner may be considered employees or dependent contractors of the business you have been working for. Where the company exerts a high degree of control over your day-to-day work, and where you provide exclusive or mainly exclusive service to that organization, a dependent relationship of employer-employee may be found. If that is the case, you could be entitled to more than 14 days notice of the termination of your contract.

 

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.

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