Question: I got my vaccination late. I was fired anyway. What are my rights?

Generally, employers in a non-unionized workplace can terminate you without cause if they provide working notice or pay in lieu of notice, subject to human rights legislation. The manner of termination and your employment terms will determine your legal remedies.

Were you terminated with or without cause?

You should first determine whether you were terminated with or without cause. If you are terminated without cause whether you were vaccinated or not is likely immaterial. If your termination notice states termination without cause, you are entitled to notice, or pay in lieu of notice. In these circumstances, the notice period will depend on whether your employment agreement has valid termination provisions rebutting your entitlement to common law reasonable notice. If so, you may only be entitled to  the Employment Standards Act, 2000 (“ESA”) minimum standards.

In contrast, employees dismissed with cause will typically not be entitled to notice or pay in lieu thereof. Then employers must meet the legal test to deprive an employee of any form of compensation. The test is stringent. The employer must establish that the employee’s alleged misconduct is such that the employment relationship has become untenable. In your case, whether your failure to comply within the terms prescribed in your employer’s vaccination policy is cause for dismissal will depend on a court’s assessment of the reasonableness of the mandatory vaccination policy and your circumstances.

Do you want your job back?

You are in a unique situation if you were recently terminated but are now vaccinated. In some cases where late compliance has been the sole reason for dismissal, we have cost-efficiently negotiated that the employer rescind the termination and the employee return to work. You must engage legal counsel quickly, especially when you were vaccinated just after the deadline. A word of caution, absent an extraordinary circumstance preventing employees from meeting employers’ vaccination deadlines, employers need not accommodate employees who scheduled vaccines outside a deadline.  However, we have had success getting employees’ jobs back, as many employers would prefer to rehire and avoid litigation.

Despite the above, if you were put on an indefinite unpaid leave for being unvaccinated, your legal options would depend upon your employment contract’s terms. Put simply, absent a layoff provision in your contract, an unpaid leave in most cases constitutes a constructive dismissal. It is important if you wish to contest the layoff that you engage an experienced employment lawyer immediately. Failing to do so would result in a perceived acceptance of the layoff the forfeit of your rights to severance and termination pay of up to 24 months for long term employees.

We encourage you to seek assistance from Hum Law firm immediately if you are placed on unpaid leave, laid off, or terminated during COVID-19 to ensure you are treated fairly.