Originally Published in The Toronto Sun, 10/09/2021
Unemployed by Christmas is the future thousands of City of Toronto workers could be facing if they remain unvaccinated for much longer.
A few weeks ago I wrote about the worker shortage that unvaccinated employees would create. The wheels are now in motion.
This week, the City of Toronto has revised its vaccine policy requiring all remaining unvaccinated city employees to get the jab by Nov. 1. If they fail to do so, employees will be suspended without pay for six weeks. Those who don’t get vaccinated during the suspension period will face termination less than two weeks before Christmas.
By my math, this will affect over 3,200 City employees who, as of Oct. 5, disclosed they were either partially vaccinated or unvaccinated. Presumably, those who did not disclose their vaccination status will also be suspended, which could increase the number to over 4,700.
Essentially, a group of employees the size of a small town is about to face consequences unlike anything we have ever seen.
I see this playing out in several ways.
The first, most likely outcome is that the city offers unvaccinated employees severance packages in December. While some lawyers are calling for employees to be terminated for cause if they do not get vaccinated, that advice doesn’t seem to take business realities into account.
The fact is, the legal costs and risks associated with defending a “for cause” position is much too high and the City of Toronto will likely not choose that path. Terminating long-term employees for cause makes an employer seem callous and unfeeling, a major morale drag for those who remain employed.
Another major consideration is the union pressure the city will face when thousands of employees are suspended. For example, CUPE 416 filed a policy grievance the day after the city revised its mandate.
To avoid weeks of arbitration and the ensuing legal costs, I predict the city will exit employees as though they are terminated on a without cause basis come December.
The second, less likely but possible outcome is that the city responds to union pressure and further revises its vaccine policy to allow employees more time (perhaps until the spring) to get vaccinated while remaining employed. Unions will file policy grievances to slow the city down. The city has already provided employees with several months notice of its vaccine mandate, but more time to adhere to a policy is always favored by the legal system.
The city carefully crafted a lengthy timeline and education focused plan that allowed employees ample time to get vaccinated with multiple opportunities for even the most resistant employee to avoid consequences. If the city cannot come to terms with the unions on the exit of unvaccinated employees, the city may lengthen the runway to ensure employees received every opportunity to avoid termination.
The last and most unlikely possibility is that the city terminates unvaccinated employees for cause. In this scenario, employees get no severance pay whatsoever, regardless of their years of service. The idea here is that by failing to get the vaccine, employees have effectively benched themselves. They have opted out of working society at no fault of the city and have themselves breached their own employment agreements leaving them entitled to no pay.
Another version of this option is that the city asserts the employment agreements of these employees are “frustrated” and only pay statutory minimum payments on termination.
Whatever way the city goes, we know for sure that the future of Toronto doesn’t include the ongoing employment of the unvaccinated. A sea of change in the world of employment is upon us. Are you ready for it?
On to this week’s questions:
Q. I have been a longtime employee at my employer that is in manufacturing. I have had no issues with others or discipline. My employer is saying I need to show proof of vaccination and I do not want to do this. I am working from home. If I am fired will I get anything? Can they actually fire me?
A. Employers that are imposing vaccine mandates are by and large doing so to create a safe working place for employees. Employers are required to provide safe working environments to their staff. Unless you have a legally qualified exemption to the mandate (religious or medical) your employer may determine that it cannot continue to employ you and also provide a safe working environment to all of its employees. There are many reasons why you may not want to get the vaccine and if you are terminated it is worth talking through with your employer and a lawyer to explore what a fair exit package would be.
Q. I have been terminated after 18 years and just told by my employer that it is due to COVID-19 layoff. I have no termination letter. I have received nothing but I am not sure if I am entitled to anything because I was terminated during COVID?
A. You are entitled to damages as a result of the termination of your employment. COVID does not change that. If you worked for 18 years you may be entitled to a substantial amount of wrongful dismissal damages from your employer. My advice is to ask for a severance package and get legal advice to ensure it is in line with what a court would award you.
Have a workplace issue? Maybe I can help! Email me at email@example.com and your question may be featured in a future column.
The content of this article is general information only and is not legal advice.