Since the end of summer, my employment law firm has been inundated with thousands of questions about COVID-19 vaccinations in the workplace from unionized and non-unionized workers alike. From what people have told us, the driving force behind these queries is the mandatory vaccination policies that countless employers have put in place, with deadlines for compliance coming into effect this fall.
Many companies are requiring employees to either fully vaccinate or submit to routine testing. Others have taken a much firmer stance on the issue and are threatening to fire employees for cause — which means without severance pay — if they refuse to get inoculated. The result of the policies could be one of the country’s largest termination waves in recent memory.
But in some cases, it may be illegal for an employer to mandate the COVID-19 vaccine in the workplace. Here’s what employees and employers should know when it comes to workplace vaccination policies.
It is illegal to fire an employee for cause if they refuse to get vaccinated
Absent an order by the federal or provincial government, it is illegal for an employer to terminate an employee for cause if they decline to get their shots by a specific date.
While it may be illegal for your employer to fire you in this case, you can’t stop them from terminating you. Your employer may, however, be required to pay damages on top of a full severance package.
Employees can’t be penalized for refusing the vaccine
Your employer can’t punish or penalize you for failing to comply with their mandate. Penalties can look like a reduction in your pay or hours of work, unpaid suspensions and changes to your duties. Any of these actions could be construed as a constructive dismissal, and you could be entitled to full severance, which can be as much as 24 months’ pay.
Employers must pay for mandatory rapid testing
If you choose not to get vaccinated, your employer can ask you to undergo regular COVID-19 tests. These tests should be paid for by the company instead of the worker. Otherwise, it could count as a constructive dismissal.
If you refuse to submit to routine testing, your employer can let you go, but must provide proper severance to avoid a wrongful dismissal.
An employment lawyer can’t help unionized employees
Many unionized employees are reaching out to me in search of legal assistance after being told by both their employer and their union to get their shots.
If you are a unionized employee working in Canada, your only recourse on all employment matters, such as terminations, severance pay or layoffs, is through your union. As per the collective bargaining agreement, you have granted the union full control over your workplace rights. An employment lawyer doesn’t have the ability to represent you, even after you have been let go from your job.
Resigning over a vaccination policy means missing out on severance
Resigning from your job means you lose your ability to collect severance pay from your employer and employment insurance from the government. You will have no financial lifeline to act as a bridge between jobs.
If your workplace has a mandate and you do not wish to get vaccinated, you can inform your employer about your choice. They will then have to decide if they want to keep you or let you go with the appropriate amount of severance.
This also applies to situations beyond the vaccination issue. In my practice, I’ve found that if your employer recommends that you resign rather than be fired, they are likely doing so to avoid their legal requirement to pay you full severance.
Want to know if a government vaccine mandate covers your job? Find out using this guide from Samfiru Tumarkin LLP.
Have you been fired because you refused to get vaccinated? Not sure what your rights are?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta or British Columbia. Get the advice you need — and the compensation you deserve.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.