Omicron's transmissibility among vaccinated may work against some employers, say lawyers
In employment disputes over vaccine mandates, lawyers say context and reasonableness will be key factors, and the Omicron variant’s high transmissibility may work against some employers.
COVID vaccine mandates are common in Canadian workplaces, and while they are producing a lot of client calls for employment lawyers, there is not yet any judicial guidance for drafting a standard policy.
“On its surface, it's a battle of protecting the health and safety of workers, from the company's perspective, versus privacy rights and the freedom to make choices about bodily integrity, on the employee side,” says
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Daniel Chodos, a partner at Whitten & Lublin, in Toronto.
“This is the million-dollar question: What do you do, as a business, with the people who aren't vaccinated?”
In a non-unionized workplace, it is “very clear” that employers can terminate employees who do not get vaccinated, says Andrew Monkhouse, an employment lawyer at Monkhouse Law, in Toronto. But the question to be resolved by the courts is whether those employees should get reasonable notice and severance pay, he says.
Bram Lecker, principal of Lecker & Associates, says employers cannot enforce vaccination mandates. Employers cannot demand private health information from employees and cannot impose a condition on employment after the fact, he says. Also, employers typically first suspend the unvaccinated employee, giving them a few months to comply. After that, when the employee comes back and is still not vaccinated, they are then terminated for cause. That is condonation, says Lecker. “That, in our view, would be illegal.”
Monkhouse has seen a range of workplace vaccine mandates. For some, it is either vaccination or termination. For others, the unvaccinated are required to get tested regularly. “That's one of the difficulties. There isn't a standard vaccine mandate that we've seen come up at this point, which is difficult for employers.”
Generally, says Monkhouse, the arbitration decisions which have dealt with vaccine mandates illustrate these cases will be judged contextually. It will matter how much contact people have in the workplace and what the chances are of the workforce getting sick.
In one case with which Monkhouse dealt, an employee had been working at home since prior to COVID and had not once met any of their co-workers in person. The company enacted a “zero-tolerance” vaccination policy, and the employee was terminated for not complying, says Monkhouse. “But the person was working at home.” It is difficult for the employer then to say it was a reasonable policy, that they were not just arbitrarily imposing their will on an employee, he says.
Monkhouse also consulted for a case on the other extreme. When informed of the vaccination policy, an employee was “disrespectful,” became “extremely belligerent” and even destroyed property. “Those people are going to have a very hard time convincing a judge that they acted in a reasonable way. And judges tend to support the parties that are reasonable.”
Allison Kindle Pejovic, a lawyer at the Justice Centre for Constitutional Freedoms, says, in private, non-governmental workplaces, employers must ensure they are following provincial human rights legislation and ensure the policy provides exemptions on creed or religious grounds. “They also have a duty to accommodate their employees to the point of undue hardship, which should include permitting unvaccinated employees to work from home if it is feasible for them to do so.”
“Government employers that impose vaccine mandates should expect legal challenges from unvaccinated employees on the basis that their Charter rights have been violated,” says Pejovic. “Specifically, the Charter protects government employees’ rights to freedom of religion, right to bodily autonomy, right to privacy and right against discrimination.”
According to the U.S. Centers for Disease Control and Prevention (CDC), the Omicron variant spreads more easily than other COVID strains, and the CDC expects that “anyone with Omicron infection can spread the virus to others, even if they are vaccinated or don’t have symptoms.” While the current vaccines will “protect against severe illness, hospitalizations, and deaths,” the CDC adds that “breakthrough infections in people who are fully vaccinated are likely to occur.”
Monkhouse says that Omicron’s transmissibility to the vaccinated takes “at least some of the wind out of the sails” of employers trying to enforce strict vaccine mandates.
Six months ago, says Chodos, this argument could not be made as forcefully, because the evidence indicated getting vaccinated would stop the spread. “But that hasn't been happening lately, from what I've seen,” he says.
“For argument's sake, let's just assume that's true. How does an employee justify firing somebody for cause without severance, just because they're not vaccinated, when it actually won't stop the spread within that workplace? What is it accomplishing?
“Look, it’d be great if people got vaccinated, because then they, themselves, would be better protected. That would be in people's best interest – same as wearing seatbelts when they get in their car. But does that stop other people from contracting the illness? Debatable, at best.”
