Lots of unvaccinated workers file unfair dismissal claims against employers, lawyers say

Many employers in Canada began imposing vaccine mandates last fall, encouraged by public health guidelines on the effectiveness of COVID-19 vaccines against infections and serious illness.CARLOS OSORIO / Reuters

Employers across the country have begun firing employees who are not fully vaccinated against COVID-19, according to lawyers, who say they are inundated with vaccine-related cases and allegations of wrongful dismissal.

The deluge of cases sets up a crucial legal test of vaccine mandates imposed by employers, one that pits workers ‘individual rights against employers’ health and safety concerns in the midst of a pandemic that has dragged on for nearly two years.

Leading employment and employment attorneys told The Globe and Mail that cases involving the dismissal of unvaccinated employees depend on a number of factors, including whether employees are required to return to work, details of an employee’s original employment contract, and whether the employee is unvaccinated for reasons. other than medical or religious.

“I have never in my 20-year career had as many calls, emails, inquiries about a single issue as I have about employees who have been released or put on indefinite leave due to a company vaccine mandate,” said Lior Samfiru , co-managing partner of Toronto-based employment and employment law firm Samfiru Tumarkin LLP.

Shaun Parker, a Calgary-based partner at Bay Street law firm Osler, Hoskin & Harcourt LLP, told The Globe he’s also starting to see a wave of layoffs of employees refusing to be vaccinated. “We see it most in the private sector. These employees are now applying for lawyers and trying to seek severance pay.”

Mr. Samfiru, who represents employers and employees, told The Globe that his company currently handles hundreds of cases involving employees who are fired for their vaccine status. In almost all of them, employees were fired with cause, which means they were denied resignation. “There have been thousands of people who have been put on unpaid leave or have been laid off without compensation. It is a big problem and I think many employers do not understand the legality of it, ”he added.

Whether or not an employee can be fired for not complying with an employer’s vaccine policy is a complex issue, lawyers say, complicated by the fact that there has been no final court decision in Canada on how vaccine mandates can be enforced in the workplace.

“The question we are all trying to answer is, can an employer in a non-union dismiss an employee with a reason for not being vaccinated? In my opinion, they can not, except in very specific circumstances,” said Lai-King Hum, founder of Hum Law, a boutique law firm in Toronto that deals exclusively with work and employment issues.

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Many employers in Canada began introducing vaccine mandates last fall, encouraged by public health guidelines on the effectiveness of COVID-19 vaccines against infections and serious illness. As deadlines for being fully vaccinated passed (for most employers, the requirement to get two shots means vaccine), employee layoffs began. About 20 percent of Canadians over the age of 5 are not fully vaccinated.

Last week The City of Toronto fired 461 employees for not complying with its vaccine mandates. The Toronto Transit Commission also announced this week that it would lay off 354 employees who refused to be vaccinated.

The Globe contacted more than 30 employers who had introduced mandatory vaccinations – including Canada’s five largest banks, most major law firms, insurance companies and auditing firms – to understand how the policies were applied to employees who chose not to be vaccinated without a reasonable doctor or religious exemption. Most employers declined to indicate whether they had or would terminate unvaccinated employees.

“The complication that employers are beginning to realize is that if your employment contract did not state from the outset that vaccines are mandatory, then you will probably have to pay an employee if you want to terminate them. The costs are rising, Ms. Hum.

For non-unionized employees, the question for the courts is whether unvaccinated employees should be awarded compensation in the form of salary. In a union, workers could potentially be reinstated in their jobs if an arbitrator rules in their favor.

Some employers told The Globe that they intended to lay off employees who were not vaccinated. The law firm Gowlings WLG LLP said non-compliance with its vaccine mandate without an approved exemption would result in “sanctions, up to and including termination of employment.”

Insurance company Canada Life, which employs more than 10,000 workers, said in a statement that employees who fail to “certify their vaccination status or undergo rapid tests without a valid and documented human rights exemption” would be disciplined, “up to and including termination.” The auditing firm KPMG Canada went so far as to state that employees who refuse to be vaccinated will be laid off for “just reasons”, suggesting that they would not receive any severance pay.

Andrew Monkhouse, an employment lawyer in Toronto who handles several cases related to vaccine firing, said he believes unvaccinated employees who are terminated with cause have a particularly good argument if the employee can prove that their unvaccinated status does not bring health and the safety of a workplace at risk. “I think you would have unusually strong reasons if you work from home,” Mr. Monkhouse.

In Maple Ridge, BC, a woman working from home was fired without dismissal from her job as an accountant at Ducks Unlimited Canada – a non-profit organization that focuses on wetland conservation – so as not to be vaccinated “by personal choice. ” shows court documents. The woman, Andrea Marlene Horvath, is represented by Mr. Samfirus company and filed a lawsuit last week claiming damages worth up to 13 months of her six-figure salary.

“We always have to ask: What is the purpose of the policy? An employer will say it is to keep the workplace safe. So how does the vaccine status of an employee working from home affect it in any way? “Said Mr Samfiru.

Monkhouse points out that the situation with the vaccine mandate in the workplace needs to become more difficult as more and more vaccinated Canadian employees become infected with Omicron, the latest major COVID-19 variant. Early studies have shown that Omicron, compared to previous variants, causes a significantly higher number of breakthrough infections among the vaccinated, although this group tends to be less seriously ill than unvaccinated.

“There is a completely different moral imperative in forcing someone to get a vaccine when the primary benefit of the vaccine is for that person’s own safety, as opposed to the safety of others,” he said.

While there are still no court decisions on the implementation of vaccine mandates In non-unionized workplaces, there are a number of legal decisions in Ontario that involve unionized employees that provide some insight into how these cases can play out in the courts.

In November, the Power Workers ‘Union, the Ontario Power Plant Employees’ union, filed a complaint against the Electrical Safety Authority’s mandatory vaccine policy, a provincial body, claiming that the policy represented a significant “excessive management exercise.” rights, ”and violated the privacy of employees.

The arbitrator ruled in favor of the union, arguing that because vaccine mandates were never part of the collective agreement, there could be no statutory requirement for ESA employees to be vaccinated, regardless of whether Canada is subject to a global pandemic. In fact, the arbitrator wrote in his ruling that vaccination of the population was “necessary to ensure the fragile health care system and ultimately put this pandemic behind us”, but that view could not override the collective agreement.

On the contrary, an arbitrator ruled a mandatory vaccine complaint filed by the United Food and Commercial Workers Union against the employer, Paragon Security, because it was stated in the UFCW agreement, years before the pandemic, that vaccinations and inoculations were necessary for workers.

“It’s more clear to unionized employees because you have the collective agreement to rely on,” Ms. Hum. “But I think in the end there will be a case going to court that sets a precedent in this matter.”

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