Employment world continues to wrestle with vaccination issue ⋆ LegalMattersCanada

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Situations can change rapidly

But if we have learned one lesson since March 2020 it is that situations can change rapidly and as much as we wish it would disappear, the coronavirus remains with us, he says, pointing to news reports that state Ontario has entered its seventh wave of COVID-19.

“The context is changing over and over again. The number of those infected go up and down and now the prediction is that the numbers will go up in the fall. We are in yet another wave,” Rudner tells LegalMattersCanada.ca. “For employers and employees, that might mean more vaccination requirements in the fall and booster requirements.”

Notably, even between the time this interview took place and the post was published, we saw an increase in concerns regarding a new wave, the announcement of more widespread vaccine booster availability, and the return of random testing at major Canadian airports.

Federal Health Minister Jean-Yves Duclos recently told reporters that Canadians will need a booster shot every nine months for the foreseeable future. He says the coronavirus is changing and Omicron “has cruelly demonstrated that we will never be ‘fully vaccinated’ against COVID.

“Our collective efforts and our successful two-dose vaccination process have saved tens of thousands of lives and prevented hundreds of thousands of hospitalizations,” Duclos says. “All the same, it is clear that COVID-19 is still here, and will be with us for some time.”

Confusing time for employers

Rudner says it can be a confusing time for employers, who have had to frequently pivot to keep up with new rules and regulations to keep their businesses afloat during the pandemic.

The employment landscape is constantly changing, he says. For example, the deeming provisions of the Infect io us Disease Emerg ency Leave (IDEL) are set to end on July 30. As well, employers have also been dealing with wrongful dismissal lawsuits related to the pandemic and more are expected to follow.

“Once IDEL is done and once we see a few more court decisions on the issue of whether there was constructive dismissal when people were put on layoff, I expect we are going to see hundreds, if not thousands of those cases,” Rudner says. “We are also going to see cases where people have lost their jobs for failing to comply with a vaccination policy.”

He says there are “a few more court decisions” dealing with the pandemic but warns employers to consider them carefully.

“You need to be assessing your policies based on the specific factors that exist,” he says. “You must also ensure that those factors haven’t changed because your actions may not be as justifiable as they once may have been.”

Give careful consideration to discipline

Employers must realize that while they can impose discipline if a worker fails to comply with a policy, they need to be cautious in how far they go, Rudner says.

“There are two points to be made. Just because you can impose discipline does not mean you can impose dismissal. That is a completely different test,” he explains. “Just as important, even to be able to impose discipline you must demonstrate that your workplace policy itself was reasonable. And the test is not whether it was reasonable when you put the policy in place. The test is whether it was reasonable when you decided to impose discipline for breaking the policy.”

Rudner says companies who fail to reassess their policies may find themselves in legal difficulty.

“Some companies may have brought in a vaccination policy,” he says. “But just because you put a policy in place during the height of the pandemic does not mean it is still justifiable today. Here we are in July, and you terminate an unvaccinated employee. It is not going to be as easy to say that vaccination was required to the same degree it was six months ago.”

Each individual circumstance must be evaluated, Rudner says. A company has an obligation to provide a safe working environment for employees and may feel justified in having a mandatory vaccination policy. But if someone is working from home and they are no risk to colleagues, clients or anyone else, terminating them for a breach of the policy would not be justified, he says.

‘It is not one size fits all’

“It is not one size fits all. You may have employees where it is reasonable that they be vaccinated and others where it is unnecessary,” says Rudner.

Termination is considered the “death penalty” in employment law, he says, adding “courts do not like zero tolerance policies.”

“Whether it is zero tolerance about having a deadline to be vaccinated or even something as serious as sexual harassment,” Rudner says. “Just because your policy says if you are not vaccinated by a specific date you will be terminated, that does not mean the courts are going to follow the policy. They are going to look at all the relevant factors and make their own decision as to whether you have just cause.

“Context is critical. For instance, just because you read in the news that somebody was fired for cause after failing to get a vaccination and it was upheld in court, that doesn’t mean that your company is able to terminate someone for cause if they refuse to be vaccinated,” he adds. “Every case is going to be judged on its own particular factors.”

But making the correct decision has not been easy during the coronavirus pandemic, he says.

Contact continues to change rapidly

“I’ve never seen a situation like this where the context is changing so rapidly,” says Rudner. “When we were talking about vaccination requirements a year ago, that might not have been unreasonable. Six months ago, it was much more reasonable. Now it’s less reasonable again.”

Using workplace vaccination policies as an example, he says it is important for employers to not only have a plan in place but also review it as circumstances change.

The conduct of the employee plays a critical role in determining whether a dismissal is just, Rudner says.

“Is the worker behaving in a way that irreparably harms the employment relationship? One of the examples in the news media is someone who missed the deadline for the first COVID shot and then caught up but lost their job anyway,” he says. “In a case like that, if you have someone who is making efforts to comply with the policy, not just giving reassurances but actually taking action to comply, it is going to be difficult to say you have just cause to terminate.”

Employers have been under pressure

Rudner says employers have been under pressure during the pandemic, attempting to comply with changing government regulations while trying to keep their doors open.

“With things such as mandatory vaccinations, businesses are acting in good faith assuming it is the right thing to do,” he says. “But some may not be taking the time to think about it. Just because some other organizations are requiring vaccinations, doesn’t mean they have to. And again, it doesn’t mean they have to do it across the workforce.”

In the end, it is up to the employer to prove their policy is justified at the time of the discipline, Rudner says.

“I would caution every organization not to assume that they have the right to fire anybody who doesn’t comply with a workplace policy,” he says. “I tell our clients, ‘Assume you are in court and you are being cross-examined as to why it was necessary that an employee be terminated and you can’t come up with a credible argument as to why. Then you’ve got some very real liability.”