Workly Law, HR, Employment

Who will fill gap when unvaccinated workers cause shortage?

By: Sunira Chaudhri

Vaccination Mandate

Unvaccinated employees are about to create huge worker shortages. Who will fill the gap?

While workers have won the war on the right to remote work, in the battle of vaccination, employers are the victor.

Employers are emboldened by the actions of our various levels of government that have called upon their own employees to vaccinate or face certain consequences.

With approximately 30 percent of Ontario residents not fully vaccinated, the fact is the majority of our workplaces employ one or some unvaccinated people. Public and private employers are responding.

In fact, this week the City of Toronto announced that at least 1000 of its employees are not yet vaccinated leading up to its mandatory vaccination deadline. Thousands more have not yet completed vaccine disclosure forms, meaning many more City employees could be unvaccinated too.  While one would normally expect data like this to be hidden, it’s been released to the public, mounting public pressure on City employees to the take the jab. This is likely because the City of Toronto intends to recall some 10,000 employees into the workplace. Those that aren’t vaccinated can’t be part of this plan at scale.

Meanwhile, the CBC reported that 172 Windsor hospital staff have been suspended without pay for not getting the Covid-19 vaccine by September 22. These workers are now on an unpaid two week leave and have until early October to get their first dose or risk termination, potentially with cause. The CEO of Windsor Regional Hospital, David Musyj said “We’ll be able to cope without them, I hope,” during a media briefing this week.

The Ontario Human Rights Commission signalled its support of vaccines in the workplace in a statement this week, noting that “mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code (Code)” provided those who can’t get the vaccine due to approved exemptions are reasonably accommodated.

Employers are preparing for the grim reality of permanently parting ways with unvaccinated employees. The risks of returning unvaccinated employees to the workplace are too great.

Even though employers are taking positive action to identify and terminate employees that are unvaccinated, there are parameters that should be followed before permanently severing ties.

Things to keep in mind:

1.    If you don’t have a vaccination policy, draft one now: employees are entitled to know what your workplace policy is when it comes to Covid-19.
2.    Create a contingency plan: If key employees are unvaccinated you will need  to create a plan to either find accommodations to keep them on board or plan for seamless transitions in your workforce
3.    Pause before you punish: While many employers seem to be handing out suspensions and even terminations for unvaccinated employees, these steps should be taken only after careful planning and legal advice.
4.    Update your employment agreements: you will have to hire quickly in the event that you face a swift turnover in your workforce. Ensure your agreements, offer letters and policies reflect your current culture, values and protect your bottom line.

On to your questions from this week:

Q. I have heard from my employer that we will be returning to the workplace a few days a week in the “new year”. This all seems vague. I’ve moved back in with my parents over an hour out of the city. If we are only being called a few days a week do I have to go or can I ask to work from home permanently. Clearly I can do my whole job from home.

A. Yes, you will have to go unless your role is approved to work from home permanently. Many employers believe employees need to be in the office for at least part of the time to facilitate collaboration that can’t be done remotely. If you require a specific accommodation that may justify a request to work remotely.

Q. I have worked at a company for 14 years doing financial work. I’ve helped build it up and work with a lot of the company’s clients. Years ago when I started I signed an employment agreement that says I can’t work for a competitor within 25 km if I leave. Does this mean I can’t work if I resign?

A. Non-competition clauses like this are usually unenforceable and won’t hold ground in front of a judge. Still, employers may attempt to enforce the clause against you as a leveraging tool on your exit. Use counsel to help you navigate your resignation to make the next part of your career barrier-free.

Have a workplace question? Maybe I can help! Email me at and your question may be featured in a future article.

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