As we navigate a pandemic and the tentative efforts to get “back to normal” in the workplace, there is no shortage of questions.
➢ Can you require that employees be vaccinated?
➢ Can employees insist on working from home?
➢ How do you ensure a safe workplace without infringing an employee’s rights?
The reality is that most of our work is caused by people making assumptions instead of finding out what their rights and obligations are before acting. As we often say, it is always less expensive to prevent a problem than it is to fix it. A mistake can cost you tens of thousands of dollars, plus unnecessary legal fees.
We prepared a Guide to Getting Back to Business back in May 2020. Perhaps that was overly optimistic, but with a widely vaccinated population, businesses across the country are now starting to welcome employees back to the office. Headlines are filled with discussions of mandatory vaccinations and vaccination passports, as well as reluctance to return to the workplace.
There are many questions from employers and employees on what they can and can’t do, how to keep the workplace safe, and what rights and responsibilities each party has in this process. We are working with clients to help them understand their rights and obligations, and to enforce their legal rights. Surprisingly, many employers are underestimating their rights and allowing employees to dictate the terms of the relationship. While we encourage you to be reasonable, it is important to remember that the pandemic did not change the fact that ultimately, you as the employer are still the boss.
Can employers dismiss employees who refuse to take the vaccine?
In short: yes. The reality is that most workers in Canada do not have job security; what they have is an entitlement to severance if they lose their job through no fault of their own[1]. The vast majority of employees can be dismissed at practically any time for practically any reason, or no reason at all, so long as they receive the appropriate termination pay/severance. We are working with many companies to design policies on this issue and address employees who refuse to comply with reasonable safety requirements.
What if they have an exemption from vaccination requirements?
Human rights legislation protects employees who cannot be vaccinated as a result of medical conditions or genuinely held religious beliefs. Those employees would have a human rights claim if they were dismissed due to their failure to be vaccinated; instead they are entitled to accommodation to the point of ‘undue hardship.’ That may mean regular testing, or distancing and masking, or a work from home arrangement as needed. In appropriate circumstances, it could also mean an unpaid leave of absence. Accommodations do not need to be perfect, but they do need to be reasonable, so they may look different for every workplace.
There are no other exceptions.
Can they be dismissed without severance?
There is an exception to the entitlement to severance: when just cause for dismissal exists. Just cause can result from misconduct, which can include refusing to follow a policy or direction, as long as the policy/direction is reasonable. That will depend very much on the specifics of the situation; it is far more likely that requiring an emergency room nurse to be vaccinated will be seen as reasonable, as opposed to a clerical worker who does their job from home. Even where it is reasonable, there would have to be clear warning of the expectations and consequences of failing to meet them. We have no case law on this issue.
Can employers insist that all team members return when it’s safe to do so?
Yes. Employees are not entitled to “decide” where they will work, and that has not changed. Although we encourage employers to be flexible and reasonable, they are ultimately entitled to dictate where work is performed, even if the employee has been efficiently working remotely throughout the pandemic.
A refusal to return to the workplace can justify the termination of employment, and we have helped many employers manage situations where employees have refused, including some where they moved away and assumed they could work remotely.
The only exception would be where the employee has the right to work from home or decide where they work. If they always worked remotely, or their contract says they can, that would be different.
Should workplaces insist that employees continue to distance and wear masks?
Employers are responsible for maintaining a healthy and safe workplace. Employers are always advised to take health guidance from public health authorities; depending on current conditions that may mean implementing masks and distancing for some time until local health authorities suggest otherwise. Employers should also keep employees informed of important COVID-19 information, such as the proper procedures to follow if they are experiencing symptoms, and the important numbers to call.
Because there will be unvaccinated employees for a number of different reasons, and there may be a need to interact closely with customers, clients and suppliers that are unvaccinated, precautions should remain in place.
Employees cannot refuse to return due to a general fear that the workplace is not safe. If they can identify a specific danger, then they are entitled to identify it to management and insist it be addressed; they can go to the Ministry of Labour and engage their right to refuse unsafe work if it is not addressed. However, the Ministry has rejected most COVID-related claims, insisting that there be a clear danger as opposed to a generalized concern.
How should employers recall workers from a layoff or leave?
Unless the workplace is unionized, there is no set order in which employees need to be recalled. The recalls can happen according to the needs of the business, but employers must be careful not to let any protected human rights grounds such as age, disability, family status etc. factor into their decision-making. Ontario’s Human Rights Commission has also put forth that an individual’s actual or perceived status with regard to COVID-19 infection should be considered a protected human rights ground.
Employees should be advised of the date they are to return, all safety-related policies they will be expected to abide by, and any other relevant information. They should also be clearly warned that a failure to return will result in the end of their employment.
How can We Help?
We wrote this guide to address some of the most common issues that we have been asked about in recent weeks. It is by no means comprehensive, and more information is available on our website. Most importantly, though, every situation is different, and you should get advice based on yours; contact our office to set up a Strategy Session before taking any crucial steps.
None of the answers in this document should be taken as legal advice, as they are general in nature and have not taken into account the specifics of your particular situation. In addition, please keep in mind that this information is current as of October 31, 2021 and that circumstances are evolving rapidly.
This information is only an overview of some of the most common questions that we have received, but we know that there are countless issues that will arise as we continue to unpack all of the changes to follow in the coming months. Please feel free to reach out to us at any time and discuss your specific issues with a member of our team. We regularly help employers and employees navigate difficult issues, and while COVID-19 may be the most seismic disruption that we have dealt with in some time, we are well-prepared to help you handle whatever challenges you are facing.
The bottom line is that if you are uncertain, we can help. As we often say:
If you think you might need an Employment Lawyer, you probably do.
We want to be your Trusted Advisor, your Chief HR Law Officer, your business partner. Let us be part of your team, so that we can look after your employment law issues, and
[1] Unionized workers and some federally regulated workers are treated differently.
We want to thank Guest Blogger and RHBOT Member, Stuart Rudner, Employment Lawyer & Mediator at Rudner Law!
For more information about Rudner Law please contact
Stuart Rudner
Employment Lawyer & Mediator
Main: 416.864.8500 or 905.209.6999
Direct: 416.864.8501 E: stuart@rudnerlaw.ca
Twitter: https://twitter.com/RudnerLaw