As more mandatory COVID-19 vaccinations loom, employers should have a plan: Whitten & Lublin lawyer

While some industries – like the travel sector – have been told by governments to make vaccination of employees for COVID-19 mandatory, all employers should have a clear vaccination policy, says Whitten & Lublin lawyer Jason Jagpal.

“Employers are required under various occupational health and safety acts to ensure a healthy and safe workplace for their employee,” says Jagpal, adding that most employers are not health or safety experts.

“They rely on governments telling them what is healthy and safe, and right now, all three levels of governments in Canada are telling us the only way to stay as safe as possible during the pandemic is to be vaccinated.”

Jagpal says that his practice involves “about 50-50” work on behalf of employers and employees, though he has taken on more employee-related cases these days, thanks to COVID-19.

Knowing some people who choose not to get vaccinated, Jagpal says he sees “argument on all sides,” so “this has become an area I am particularly interested - we shouldn’t be looking at this through a lens of one-size-fits but treating everybody’s situation individually.”

Jagpal will be one of the keynote presenters on employment law at a Canadian Lawyer virtual webinar on Wednesday, January 26, 2022.

Jagpal’s comments come as Federal Health Minister Jean-Yves Duclos warned last week that provinces might introduce mandatory vaccination policies in the coming months to deal with surging COVID-19 caseloads.

“What we see now is that our health care system in Canada is fragile, our people are tired, and the only way that we know to get through COVID-19, this variant and any future variant, is through vaccination,” Duclos said at a news conference Friday. He added that while rapid tests, masking and social distancing are valuable tools, they won’t end the pandemic on their own.

In the case of travel or healthcare sectors, there already is no choice but to have a mandatory policy for COVID-19, says Jagpal. But the question is whether policies from those employers not explicitly targeted by governments for mandatory vaccines should be as strong as the ones that are.

There is also the question of when firing an employee for not getting a COVID-19 vaccine is a termination for just cause. Jagpal says he believes that in the context of a non-unionized workplace in an industry that the government has not mandated COVID vaccines, an employer can indeed fire someone for not getting vaccinated for COVID-19. Still, the courts would likely say that this would be a termination without cause, rather than with cause, and compensation would be in order.

Jagpal also believes that employers need to look at the broader context of an employee’s duties before terminating their employment. He says: “Should they ask themselves, ‘Hey, how often does this person go into the workplace? Can they work remotely? Do they interact with customers? How often has this person been at the workplace, even before vaccines were available? And do they have like a proven history of dedication to health and safety?’”

Whether there is a federal or provincial mandate for employers in specific industries, employees are entitled to exemptions based on human rights, Jagpal says. “There is a duty to accommodate,” whether it is from medial, religion, and potentially creed (belief system and values).

Governments have made a “purposeful” decision to restrict these exemptions as much as possible, Jagpal says, with doctors being told there are limited reasons (such as a strong allergic reaction) for providing an exemption note.

The bottom line, says Jagpal, is that for the most part, employers are allowed to fire someone as long as it was not, for example, motivated by discrimination or other potential human rights code offences, or for requests for accommodations, or bullying or harassment. But it would not be for cause, and severance would likely have to be worked out.

“It would be a with cause termination, I believe, because it is not just about personal choice, it is refusing to do specific job duties and potentially risk the health and safety of others at the company.

One example of when firing an unvaccinated employee for cause could be justified, he says, is when a supervisor is very much against the COVID-19 vaccine. Not only did they not receive the vaccine, but the supervisor has also refused to record whether employees were vaccinated or not, which would be part of their job description.

As for accommodating those who don’t want to get vaccinated, remote working is “definitely an option,” he says. “It could work as s long as the employee’s productivity can be maintained, and proper safety protocols can be taken (such as rapid tests) if there are in-person meetings with colleagues or clients. However, an employer might argue that the contract with the unvaccinated employee could be frustrated because the employee “can’t do what they were hired to do” by working remotely and not meeting with clients in person.

Jagpal’s advice to unvaccinated employees is not to tell your employer they will never get vaccinated for COVID-19. “It should be more along the lines of ‘at this point in time I choose not to be vaccinated,’” he says. And employers should also look at the possibility that a few months down the line, there may not be a need for everyone to be vaccinated. However, Jagpal says, the latest version of COVID-19, the Omicron variant, has added uncertainty about how soon we’ll get to greater societal immunity.

Another consideration is taking into account the views of fully vaccinated employees who do not want to work next to someone who is not. You don’t want to marginalize people by stigmatizing them, like banishing them to the basement, he says, like Milton, the hapless bullied employee in the movie Office Space. However, if the company has suitable safety protocols involving social distancing and proper PPE.

“We all ended up rooting for Milton in Office Space because he was being harassed and bullied, so you want to be careful about marginalizing certain employees,” he says.

Finally, Jagpal says there are different considerations for unionized employees, which are governed by collective agreements bargained every few years by their union representatives. Those agreements set out conditions of employment, such as compensation, time off work, disciplinary rights and grievance procedures. Individual unionized employees have little say about the terms of collective agreements.

And while non-unionized employees can file a lawsuit, the primary option of unionized workers in dealing with a dispute is through the arbitration process.