Non-vaccinated employees are struggling this week.
I have talked to many workers who are now or will soon be suspended or on administrative, unpaid leaves. Most employees in this group told me they never intend to get the vaccine. Some said they need to know more about the risks first or are waiting to hear from their doctors about if they qualify for an exemption.
I have heard stories of complicated health conditions, devout religious views and privacy concerns at work from people who don’t want to get the Covid-19 vaccine. Vaccination is not a black and white decision for some. I found myself understanding the fears and concerns of at least a few of the people I talked to. It is unequivocal that some people are so fearful of or resistant to the idea of mass vaccination that they are willing to put their jobs on the line.
These conversations lead me to a few realizations:
- We are in the midst of a worker shortage in Canada and we don’t seem to know it yet; and,
- Non-vaccinated employees are considering their legal rights and taking legal action.
Employers of all stripes are struggling too. Some of those that moved quickly to implement mandates have found themselves navigating new territory; bogged down in the administration of ensuring staff are vaccinated and carefully managing the accommodation requests of employees that remain on the fence or vehemently decline to get vaccinated.
Canadian political leaders have linked arms rolling out mass vaccination policies but have, perhaps, failed to consider the necessary but significant collateral damage we now must tackle. The fact is, a notable portion of our workforce will be out of work even though there are jobs to be had. Based on recent updates to the Service Canada website, it appears those that fail to get the vaccine and are suspended or terminated, as a result, may also be ineligible for EI.
As a small business owner myself, I believe strongly that vaccination is the best path forward for business and our economy to grow, but the grim reality is our country will undoubtedly be left with a glut of jobs when non-vaccinated employees are ultimately terminated as deadlines for vaccination at many large employers loom.
Employers should start laying the foundation now for how they intend to hire and secure a workforce they can grow into the future with. Companies will find themselves needing workers especially if vaccine mandates have left them with lighter workforces.
Non-vaccinated employees should be savvy as well. Communicate as much as you can with your employer about whether or not you may get the vaccine with more time. Talk about remote work and testing until you have more time to explore your options. Leaving vaccination on the table as an option is your best chance to keep your job without interruption.
The introduction of mass vaccination mandates has opened a door for employers to peer into the lives of employees that was previously sealed shut. Employees are collecting details about their medical histories to lend credence to their position on resisting vaccination. They are visiting religious leaders seeking interpretations of their holy texts; offering up this evidence in the hopes of keeping their jobs. It’s an unprecedented, messy business on both sides. There is no easy answer.
One thing is for sure though. Employers that show a willingness to compromise and employees that conduct themselves reasonably will be favoured when the issue of non-vaccinated employees is ultimately considered by our courts.
On to our questions from this week:
Q. I make over $100,000 and I worked for my employer for less than 2 years when I was fired last week for restructuring. I was offered 6 weeks of pay, no bonus. I know I didn’t work there a long time but is it worth it for me to have a lawyer look at my case?
A. You should always have a termination letter reviewed to understand what your rights are and whether or not you may be entitled to more than what’s been offered to you. If you don’t have an enforceable employment agreement laying out what you’re entitled to on termination the common law test applies. This test boils down to: how long will it take for you to find a similar job at a similar rate of pay. While the interpretation of the test can be nuanced, if it’s reasonable to expect that it will take you longer than 6 weeks to reemploy you likely want to figure out if you can reasonably seek more in damages. Also, talk to a lawyer about whether or not you are entitled to payment for lost bonus. Often employees are.
Q. I have not taken the vaccine. My employer says I can take an antigen test 3 times a week at my own expense. This doesn’t seem fair that I have to pay out of pocket. Would this qualify as discrimination?
A. No this does not qualify as discrimination based on current law. The guidance from the Ontario Human Rights Tribunal is that vaccine mandates in the workplace are generally permissible and that employers are required to make reasonable medical and religious accommodations for those employees that request them. If you are not seeking one of these accommodations your employer is technically not required to make special accommodations for you if you elect not to get the vaccine. Perhaps request to split the cost with your employer as a compromise.
Have a workplace issue? Maybe I can help! Email me at firstname.lastname@example.org and your question may be featured in a future article.
The content of this article is general information only and not legal advice.