Suspension of Federal Vaccination Mandates

As of June 20, 2022, the federal government suspended vaccination requirements in federally regulated transportation sectors and for federal government employees. The federal government maintains it will continue to follow public health advice and reinstate the COVID-19 vaccination requirements if necessary.

However, the federal government announced that it would not introduce regulations to Canada Labour Code that would make vaccination mandatory in all federally regulated workplaces. Had it done so, federally regulated employers would have certainty on this issue moving forward.

Most employers in Ontario are not impacted by this announcement because this change only applies to federally regulated workplaces. Accordingly, these changes do not mean employers should remove or repeal their vaccination policies. For the majority of Ontario employers, the Occupational Health and Safety Act (“OHSA”) outlines the obligation to take every reasonable precaution to protect employees. Moving forward, non-federally regulated employers should base any decision to remove or repeal vaccination policies on their obligations under the OHSA.

How will this impact non-federally regulated businesses?

Ultimately, in non-federally regulated workplaces it remains the employer’s decision whether to remove or repeal mandatory vaccination policies. It is also the responsibility of the employer to establish return to work practices. Some employers, such as the federal government, have indicated that their unvaccinated employees initially placed on an unpaid leave of absence will return to work. Notably, employers that wish to repeal or remove their vaccination policy can later re-introduce it if the COVID-19 situation changes.

If employers wish to keep their mandatory vaccination policies in place, they can do so. However, the federal government’s suspension of vaccine mandates weakens their position regarding unpaid leave of absence or terminations for cause due to non-compliance with their vaccination policy. This is because vaccination is no longer mandated by the federal government and, therefore, their mandatory vaccination policy may be considered unreasonable. This could result in an employee who has been placed on unpaid leave or terminated for cause successfully establishing that they were wrongfully dismissed and are entitled to pay in lieu of notice, among other things.

How will this impact federally regulated businesses?

Federally regulated employers should consult with an experienced employment lawyer to reconsider their COVID-19 vaccination policies in light of the recent changes. When assessing vaccination policies, remember the following:

1. Vaccination policies must continue to assess accommodation requests for medical or religious grounds on a case-by-case basis, and provide evidence that they have adequately engaged in the process by documenting it;
2. Employers that remove or repeal their vaccination policies should ensure they have the flexibility to seamlessly re-establish them if required by law or the changes in the COVID-19 situation;
3. Employers should consider revising their vaccination policy to be a combined vaccination and testing policy. Some employers have implemented vaccination policies where the employee must either get vaccinated or agree to being regularly tested. This less invasive policy is more likely to be consider reasonable; and
4. If appropriate, repeal and remove the vaccination policy, but keep other health and safety measures such as mandatory masking and social distancing in place.

By Ben Markusoff

On March 1, 2022, Ontario further eased restrictions by lifting proof of vaccination requirements as well as indoor capacity limits. On March 14, 2022, mandatory vaccination will no longer be required in long-term care homes and unvaccinated workers will no longer have to undergo regular rapid testing, among other things. On March 21, 2022, masks will no longer be required in most settings. The province expects to lift all mask requirements will be lifted on April 27^th. Many businesses welcomed these announcements. However, it has also left businesses wondering how to handle workplace issues, such as vaccination policies and remote work, absent government direction.

Proof of vaccination for patrons

Last year the Ontario government introduced a vaccination passport program requiring that patrons provide proof of vaccination to access certain businesses and settings. Businesses generally supported this approach because it allowed them to ensure a safe workplace for their employees and patrons with clear government support.

Businesses, employees, and patrons alike have expressed concern about Ontario removing the passport program. However, businesses still retain the right to require proof of vaccination if they do not refuse service on discriminatory grounds under Ontario’s Human Rights Code (“Code”). Vaccination status is not a protected ground, but the reason someone is unvaccinated, for example due to a medical disability, could be a protected ground. While some patrons may attempt to make this claim, the Ontario Human Rights Committee has stated these exemptions are few and far between.

Mandatory vaccination and masking policies

The Occupational Health and Safety Act (“OHSA”) requires that employers protect their employees. To satisfy this obligation, many employers introduced mandatory vaccination policies, and required employees to wear masks.

Again, there is nothing preventing employers from keeping a mandatory vaccination policy in place absent a government mandate to do so. However, you may want to consider the following when drafting and implementing mandatory vaccination in the workplace:

1. Ensure your COVID-19 vaccination policy clearly lays out that employees will be required to get boosters;
2. Ensure all new employment agreements permit temporary layoffs and explicitly state that employees must comply with the COVID-19 vaccination policy; and
3. Require new employees to disclose their vaccination status before offering them a position; and make any offer contingent upon them explicitly agreeing to the terms of the vaccination policy.

A court has not yet determined if employers are permitted to terminate employees with cause due to non-compliance with a mandatory vaccination policy. Therefore, while employers may be permitted to terminate employees with cause, we generally recommend employers terminate employees without cause and require them to sign a release.  Most employers in Ontario retain the right to terminate an employee without cause, generally so long as they provide reasonable notice of termination. This approach will help to avoid litigation and higher legal costs.

You should also consider a combined vaccination and testing policy. Some employers have implemented vaccination policies where the employee must either get vaccinated or agree to being regularly tested. This less invasive method head off wrongful dismissal claims because anti-vaccination employees may be more likely to agree to testing, and you will not be put in the difficult situation of terminating unvaccinated employees. Further, decisions in the unionized workplaces have suggested that a combined policy is more likely to be found to be reasonable.

In addition, employers can continue to require employees to wear a mask while in the workplace.

However, act cautiously if you have not already introduced mandatory vaccination and masking policies. If the risk posed by COVID-19 wanes, the justification for unilaterally introducing a new term of employment, in this case a mandatory vaccination or masking policy, becomes tenuous.

Remote work policies

Over the past two years employers have formalized the necessity for remote work into remote work policies.

Employers can generally require their employees to go back to the workplace, absent a Code protected ground, or if their employment agreement states otherwise.

However, moving forward, many employers are considering whether it is beneficial to recall all employees to the workplace or implement a hybrid or fully remote workplace model. Employers and employees alike may wish to benefit from a hybrid remote work model, or fully remote work model. For employers, remote work will cut down on significant costs related to office space. For employees, it will offer flexibility and saving on commuting time.

If you have not already done so and intend to continue operating a hybrid or fully remote business, we strongly recommend you formalize this arrangement through a carefully drafted remote work policy. Such policies should anticipate how remote work environments address issues of discrimination and harassment in the age of zoom.

Many employers are required to implement mandatory vaccination policies. Others, while not explicitly mandated by the government to do so, are implementing them to ensure a safe workplace. As these vaccination policies are implemented, employers face the complicated problem of terminating employees who refuse to comply with a vaccination policy.

So, how do you protect your business now from wrongful dismissal claims in the era of COVID-19 policy-related dismissals? And what steps can you take now to protect your business in the future?

Protecting your business today

Many employers are terminating employees who refuse to comply with mandatory vaccination policies.

Some employers are laying off or placing employees on unpaid leave if they refuse to comply with the mandatory vaccination policy. However, employers should be cautious when doing so because, unless expressly permitted in the employee’s employment agreement, lay offs and unpaid leave are generally not permitted and could invite a constructive dismissal claim.

To avoid a constructive dismissal claim, you may wish to terminate an employee without cause and provide the appropriate notice or pay in lieu of notice. If you decide to terminate an employee without cause, you must first carefully review the employee’s employment agreement to determine whether the termination provisions are enforceable. If the termination provisions are enforceable, the employee’s notice period or pay in lieu of notice could be limited to the Employment Standards Act, 2000 (“ESA”) minimum. In this case, the cost effective and safe approach may be to simply terminate the employee without cause and provide them with their minimum entitlements. However, if the termination provisions are unenforceable, or the employee does not have an employment agreement, you will be required to provide common law reasonable notice or pay in lieu of common law reasonable. This can amount to up to 24-months compensation for long term employees.

Alternatively, you may wish to terminate the employee with cause and withhold any termination or severance pay. An experienced employment lawyer will ensure you are taking the right approach if you decide to terminate an employee with cause. Terminations with cause due to non-compliance with a vaccination policy have not yet been considered by a court and are highly contextual. This approach bears more risk because an employee terminated with cause and not provided with any severance will likely look to improve their situation through legal recourse.

Protecting your business in the future

Moving forward, the best strategy to avoid costly litigation is to update your employment agreements.

As we have noted in the past, many employment agreements do not have enforceable termination provisions due to the decision in Waksdale v Swegon North America. Accordingly, you should update your employment agreements to ensure the termination provisions are enforceable. This way, you can comfortably rely on without cause terminations, including in circumstances where an employee refuses to comply with a vaccination policy.

Most employment agreements do not have a provision permitting a temporary lay off or unpaid leave. Therefore, if you were to place an employee on temporary layoff or unpaid leave due to non-compliance with a mandatory vaccination policy, they could successfully claim constructive dismissal. You should immediately update your employment agreements to permit temporary layoffs and unpaid leave.

Finally, when hiring new employees, ensure they expressly agree to the mandatory vaccination policy as a term of their employment with your business.

The best strategy is to create air-tight employment agreements that dissuade employees and their lawyers from even considering a lawsuit. We encourage you to consult with an experience employment lawyer to assist you navigate these issues.

 

Contact HUM Law today to ensure your employment contracts will remain valid.

 

Call today at (416)214-2329 or email info@thehumlawfirm.ca or Complete our Free Assessment Form Here

Many employers are laying off or suspending employees who refuse to get vaccinated. Other employers are placing employees on unpaid leave for a period before eventually terminating them. Some employers are even attempting to avoid their legal obligations to provide employees with severance packages by placing them on unpaid leave or laying them off.

If your employer has placed you on unpaid leave without giving you any compensation, do not just accept the unpaid leave or lay off.  Consult an experienced employment lawyer immediately, as you may have been dismissed and be entitled to a severance package.

Under the common law, your employer does not have the right to lay you off or place you on unpaid leave. Unless you agree to the terms of a lay off, a unilateral layoff by your employer is a substantial change to your employment agreement and is a constructive dismissal.

However, on rare occasions employers have included clauses in employment agreements that permit them to lay off employees so long as they comply with the Employment Standards Act (“ESA”). The ESA permits employers to place employees on temporary layoff for 13 weeks in a period of 20 weeks, or 13 weeks in any period of 52 weeks in some circumstances. Agreements created recently may include such temporary layoff provisions. Do not sign any documents until a lawyer reviews them, as they may limit your severance and termination rights.

If your employment agreement does not have a clause permitting your employer to place you on temporary layoff, or your employer has failed to recall you within the timelines prescribed by the ESA, you could have a claim for constructive dismissal. For longer term employees this means the employer may owe up to two years in severance and benefits including the extension of health, dental, and other benefits and bonuses. We should also note most offers are low, sometimes as low as 10% of what you are owed. So have a lawyer review any offer.

The Ontario Regulation: Infectious Disease Emergency Leave under the ESA (“IDEL”) has created some confusion. Many employers are laying employees off pursuant to IDEL, which was recently extended until January 1, 2022. Many employees could claim constructive dismissal if they have been placed on IDEL. In our experience, most employers prefer to negotiate a severance package rather than fight and spend legal fees.

If you have a non-union employment agreement with no terms permitting your employer to lay you off, you are likely entitled to a severance package. The size of this severance package will depend on whether you are entitled to common law reasonable notice or only the ESA minimum standards. We recommend assessing your position immediately to protect your rights.

These are challenging times. We understand.

#laidoff #COVID19 #constructivedismissal #employmentlawyerontario

If you need guidance from an experienced employment lawyer, Hum Law Firm can ensure you receive a fair severance package.

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Call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca

To weigh the options you may have, you need to consider the following three questions. First, are you truly eligible for an exemption? Second, is your employer justified not to accommodate your exemption? Third, what will your employer do next?

Are you truly eligible for an exemption?

Covid-19 vaccine exemptions are rare. Personal preference or opinion, or fear for possible side effects without evidence will not justify a request for an exemption. In addition, the proof for the exemption has to come from a reputable source that has the expertise or the status to give that opinion. The burden is generally on the employee to show sufficient evidence to prove that they need an exemption. Otherwise, the employee may not be able to demand an exemption.

Is your employer justified to not accommodate your exemption?

Let us assume that you are eligible for an exemption. If you are eligible for an exemption, that generally means you are protected under the that requires employers to accommodate  employees. For example, if an employee has a medical condition that prevents them from getting the Covid-19 vaccine while the employer has a mandatory vaccination policy in place, the employer has to accommodate the employee instead of punishing the employee for not following the mandatory policy. Possible accommodation could involve working from home, daily rapid tests, masking, and physical distancing, changing roles, or other ways that could achieve the same purposes of the mandatory vaccination policy. If the employer fails to accommodate the employee who has a legitimate ground not be vaccinated, the employer may violate the employee’s human rights and face the consequences as a result.

That being said, an employer’s duty to accommodate is not without limit. If there is no way to accommodate an employee without causing undue hardship to the employer, the employer will be justified not to accommodate the employee. For example, if the government requires the employer to implement a mandatory vaccination policy in their workplace without exceptions, the employer will be unable to allow the employee to physically work at their workplace while unvaccinated. If the employee has to work at their workplace, and there is no other  alternative role that the employer can offer the employee, the employer would be justified not to provide accommodations.

What will your employer do next?

If an employer will not accommodate an employee’s requests for an exemption, there are many possibilities for next steps. For example, your employer may:

• eventually choose to do nothing except for several warnings as they may not really want to terminate you
• offer you a different role or shift schedule where mandatory vaccination is not necessary.
• temporarily lay you off until it becomes safe to work without vaccination.
• terminate you with or without cause.

There is no one-size-fits-all solution. That said, you may want to try to negotiate with your employer first to see if there is a solution that benefits both parties. If negotiation is not working, you may need to consider how to assert your legal rights, as you may be entitled to human rights damages, a termination package, or reinstatement if terminated. However, you must keep in mind that these rights may not apply depending on the situation, and you may have difficulty finding another job during the pandemic if you leave your current employment due to a mandatory vaccination policy.

If you need guidance from an experienced employment lawyer, Hum Law Firm can ensure you receive a fair severance package.

Complete our Free Assessment Form Here

Call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca

What happens if I refuse to comply with my employer’s mandatory vaccination policy? Two Questions Answered: I have no termination letter only the ROE? I was fired with cause, am I owed severance and termination pay? In many cases yes.

Many employees are now facing unemployment because they have not complied with a mandatory vaccination policy. We have put together responses to two frequently asked questions to help inform employees to ensure fair treatment.

 

Question #1: My employer sent me my ROE with no termination letter, what do I do?

The first thing you should do is look at which Record of Employment (“ROE”) code your employer has used. The employer has the choice of the following reasons (or codes):

• A – work shortage
• B – strike/lockout
• C – return to school
• D – illness/injury
• E – quit
• F – pregnancy or adoption
• G – retirement
• H – work-sharing
• J – apprentice training
• M – dismissal
• N – leave of absence
• K – other

Typically, employers will use the ROE codes A or K for layoffs or terminations without cause. Therefore, if your ROE code is M, you have likely been terminated with cause. This will impact your entitlement to Employment Insurance (“EI”) benefits.

You should communicate with your former employer to determine why you have been laid off or terminated and, if terminated with cause, on what grounds. If terminated without cause, you are entitled to a severance package. If terminated with cause, you could be entitled to a severance package if your former employer has unjustifiably terminated you with cause. If you have been laid off, you might be able to claim constructive dismissal. And your employer may owe you full severance and termination pay. Contact us to protect your rights to severance and termination pay.

 

Question #2: Can my employer fire me with cause and pay me nothing? Not in many cases.

Recall that your employer can always terminate you without cause.  Your employer can also terminate you with cause, but your employer must be able to show at least wilful misconduct, disobedience, or wilful neglect of duty in order withhold your Employment Standards Act (“ESA”) minimum entitlements on termination, and pay you nothing.  If wilful misconduct cannot be shown, then your employer at least owes you termination and severance pay in accordance with the ESA minimum standards, and possibly significantly more.

Contact us immediately if you were fired with cause as you may be owed significant severance. 

 

Conclusion

The law around terminations for breach of a mandatory vaccination policy is a new and emerging area. Every case will be different, and many employees are being unjustifiably terminated with cause. We will protect your rights.

If you need guidance from an experienced employment lawyer,

Hum Law Firm can ensure you receive a fair severance package.

Complete our Free Assessment Form Here

Call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca

Question: My employer has given me a mandatory vaccination notice stating that if I do not get vaccinated, they will terminate my employment without severance or termination pay. What are my legal rights?

Many employers have implemented mandatory vaccination policies that require employees to be fully vaccinated against COVID-19.

If you are terminated because you failed to comply with a mandatory vaccination policy, the first question to consider is whether there is any breach of human rights. Second, you have to consider if your employer will do so on a “with cause” basis, or will terminate “without cause” and provide termination pay.

Finally, if there is to be termination pay, you have to find out if it will be based on the minimum standards of employment law legislation – generally in Ontario, the Employment Standards Act (“ESA”) – or on common law reasonable notice.

Mandatory vaccination policy exemptions

There are few exemptions to mandatory vaccination policies under human rights legislation. In Ontario, the Human Rights Code (“Code”) indicates exemptions would be religious belief or a medical condition protected by the Code. However, both long- and short-term conditions preventing an employee from being vaccinated are rare (such as a diagnosed allergy to something in the vaccine). Employers are entitled to ask for proof of the medical condition. Further, religious exemptions are also rare, as there are few religions or creeds that prohibit vaccination.

Termination without cause

An employee can always be terminated without cause, so the fact that it is based on vaccination status does not matter, so long as your human rights are not being breached. In this case, employers generally do not cite why you have been terminated. However, if you are terminated without cause, your employer must provide you with termination pay, sometimes called a severance package. The amount of this severance package will depend on whether you are entitled to common law reasonable notice or only the ESA minimum, with the former usually entitling you to a significantly larger severance package.

Termination with cause

Your employer could also terminate you with cause, for failure to comply with the mandatory vaccination policy, and not provide you with any notice or pay in lieu of that notice.

Terminating an employee with cause and not providing any termination pay or severance is more difficult for an employer. They must demonstrate that you were “guilty of wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and was not condoned by the employer.” Some employers will allege that this high standard has been met by an employee failing to comply with a mandatory vaccination policy. However, this has not been tested in the courts and may only be justifiable in certain settings, such as hospitals or nursing homes or not at all. So today employees should contact us and consider proceeding to sue and test the employers resolve. 

You may also be terminated with cause but still provided with a severance package that satisfies the minimum standards of the ESA. However, your employer can withhold your common law entitlement by relying on the common law standard of cause or just cause. In this scenario, your employer has acknowledged that your misconduct does not meet the higher ESA standard but does meet the lower just cause standard to justify termination. The onus remains on an employer however to show that breach of unilaterally imposed vaccination policy can be basis for common law cause. If they cannot you might still be entitled to full severance and termination pay.

We encourage you to seek assistance from Hum Law firm immediately if you are terminated to ensure you are treated fairly.

If you need guidance from an experienced employment lawyer, call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca
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