Road to returning to office filled with legal potholes for employers

Read: What can employers do if workers won’t get coronavirus vaccine?

Chantel Goldsmith, a partner and employment and labour lawyer at Samifiru Tumarkin LLP, agrees, advising employers to draft a clear and consistent vaccine policy.

Caution: Danger ahead

The rules for public and private sector employers are currently set on two different paths, but private organizations can use government mandates as a roadmap for how to proceed across tricky terrain.

Employees in the core public service, as well as federally regulated organizations like air travel and rail, had until Oct. 29 to attest to their employer that they’re fully vaccinated against the coronavirus. Unvaccinated employees could ask their manager for accommodation under the Canadian Human Rights Act, but those who didn’t merit accommodation were told they’d be put on unpaid leave, according to the government. As of Nov. 15, about 1,000 employees were put on unpaid leave and unable to access employment insurance benefits.

Meanwhile, it’s up to each private sector employer to draft and enforce a vaccine policy for its employees. For many organizations looking to return to in-person work in 2022, the path forward is filled with obstacles.

Read: Employers enforcing rules for unvaccinated employees

“A lot of employers are implementing vaccine policies, but the problem is for those that aren’t mandated [by the government] to become vaccinated,” says Goldsmith. “If they are just forcing their employees, or requiring their employees, to become vaccinated and the employee chooses not do so, then they would have to terminate that employee and provide that employee with a termination package.”

Some employers have already come to a crossroads. For example, Windsor Regional Hospital fired 57 employees in early October who failed to get vaccinated. While 140 employees were placed on unpaid leave in September, 98.5 per cent of the hospital’s workforce were eventually vaccinated by the employer’s final deadline.

Off the beaten path

While employers may ultimately take the termination route, there are steps to take first.

Abraham suggests organizations create a clear return-to-workplace plan, including a vaccination policy, and decide on a case-by-case basis when and how to accommodate employees who can’t — or don’t want to — comply with those plans and policies.

Read: Canadian employees worried about working with unvaccinated colleagues: survey

She suggests any accommodation requests are looked at through the lens of complying with human rights laws. And, while employees may claim they can’t get the vaccine based on religious or health grounds, neither reason is likely to hold up under scrutiny, she adds. “The whole notion of religion has been tested; religion is unlikely to be held up in this situation.”

In addition, while there are very few cases of people who actually can’t get the vaccine due to health reasons, unvaccinated employees claiming a health exemption will need to get a medical doctor to verify that’s the case, says Goldsmith.

For the few employees who would qualify for accommodation, employers must do so up to the “point of undue hardship,” she adds. For exempt unvaccinated staff who’ve been able to work from home during the pandemic, accommodation may mean allowing them to continue to work remotely; if they work onsite, it may mean requiring them to wear personal protective equipment and sitting in a separate part of the office away from vaccinated colleagues, says Abraham.

No roadmap

Since Canadian employers just started drafting return-to-office and vaccination policies, legal cases have yet to wind through the courts, so there aren’t many precedents or guidance, note both lawyers.

Ultimately, employers can end the working relationship with any employee at any time but, as with any termination, it may cost them. Refusing to get vaccinated “isn’t a situation where employees would be terminated without compensation because there’s no just cause. . . . It would be a without cause termination,” says Abraham.

Read: 97% of United Airlines’ employees vaccinated as mandate deadline approaches

For some employers, like Windsor Hospital on this side of the border or United Airlines in the U.S., paying severance to a small number of unvaccinated employees is a price they’re willing to pay. The airline said it was firing about 600 workers who wouldn’t comply with its vaccine mandate, noting 99 per cent of its 67,000 U.S. workforce were vaccinated by its deadline. “This was an incredibly difficult decision, but keeping our team safe has always been our first priority,” wrote the company in a staff memo.

Uphill climb

While employers in many sectors are making clear calls, what’s ahead remains foggy.

The Ontario Superior Court issued an interim injunction against the University Health Network’s attempts to terminate a group of unvaccinated employees in late October. But shortly after, an Ontario judge lifted the temporary injunction, saying he doesn’t have the jurisdiction to grant the relief sought by a group of unvaccinated workers. However, the judge stressed that his decision regarding the temporary injunction “does not address the question of the merits or legality of the vaccine policy adopted by UHN.”

The hospital network said staff who didn’t receive both shots by Oct. 22 would lose their jobs. The workers allege the policy is illegal and discriminatory. Lawyers representing the plaintiffs said their clients were disappointed with the Ontario court ruling, but in late October, still planned to proceed with a lawsuit.

Read: Public service union ‘concerned’ managers may decide validity of employee vaccine views

Both unionized and non-unionized employees from UHN were fighting the mandate and the judge determined cases involving unionized workers must go through the arbitration process in accordance with the Labour Relations Act. Meanwhile, non-unionized workers were ultimately denied an injunction with the judge ruling: “As a general rule, private-sector employment may be terminated at will outside of the collective bargaining sphere in Ontario.”

Despite the legal issues for the UHN, private sector employers are given a wide berth when it comes to drafting company policies, notes Abraham. “Ultimately, the employer has the obligation under the Health and Safety Act to keep employees safe. . . . The best thing for an employer to do is a risk assessment [asking], ‘How can issues happen and how can I mitigate that risk?’ ”

One risk employers aren’t paying enough attention to in these emotionally charged times is how the polarizing politics seen on the streets at anti-vaccine protests can seep into office culture across Canada, she says.

“I’ve already been getting calls from employees who feel they’re being bullied and harassed by their co-workers because they haven’t received the vaccine. They feel they’re being singled out and it might bring about some wrongful dismissal allegations by employees who are not vaccinated.

Read: What can employers do if workers won’t get coronavirus vaccine?

“I think employers really have to be mindful of how people are working and set the tone of respect in the workplace so they can limit their liability of people saying, ‘You breached my contract of employment because you are required to treat me with dignity and respect and, because I’m not being treated that way, I want a severance package.’ ”

Melissa Dunne is the managing editor of Benefits Canada.