Workplaces across Canada began implementing mandatory vaccine policies in August. Employers such as hospitals, school boards, banks, airlines and the federal government have announced that they’ll require current and future employees to be vaccinated against COVID-19.
Some companies are trying different ways to encourage employees to get the vaccine. Chapman’s, a family-run company that is Canada’s largest independent ice cream manufacturer, offered a $1 an hour pay increase to all employees who were fully vaccinated by November 28.
The announcement garnered backlash from some of Chapman’s employees as well as anti-vaccine groups online. But the company has defended the pay increase by stating that it was meant to reward employees who got the vaccine and was not intended as a mandatory vaccine policy or a form of coercion.
In my experience as an employment lawyer, however, there is a fine line between incentives and coercion when it comes to mandatory vaccinations, and there are potential legal implications to Chapman’s pay increase.
Legal implications to a pay increase for vaccinated employees
Vice-president Ashley Chapman previously told Global News that approximately 10 per cent of Chapman’s workforce was unvaccinated as of early November. These employees were permitted to continue working as long as they took a COVID-19 test twice a week and wore face shields while at work, but were placed on unpaid leave after the company’s deadline to disclose vaccination status at the end of November.
Get daily National news
READ MORE: 5 things you should know about mandatory vaccination policies at work
It’s not clear why some Chapman’s employees declined to be vaccinated.
At companies with similar policies, however, employees with valid vaccine exemptions should also be entitled to pay increases to avoid potential human rights violations. If employees are medically or religiously exempt from the vaccine and not eligible for any pay raise or incentive offered to vaccinated employees, the exempt employees may be facing discrimination.
Companies cannot reduce an employee’s pay for not getting vaccinated without legal implications. Our courts have determined that a significant reduction in an employee’s pay can amount to a constructive dismissal. Employers cannot — and have never been lawfully permitted to — unilaterally change a fundamental term of employment, such as an employee’s wages.
Companies also cannot change other aspects of work, such as an employee’s hours of work, work location and job duties, without the employee’s consent. This includes placing someone on an unpaid leave of absence because they missed the company’s vaccination deadline. People facing unwanted changes to the terms of their employment may be able to resign and pursue full severance pay with help from an experienced employment lawyer, like the team at Samfiru Tumarkin LLP.
READ MORE: What to do if your employer cuts pay or reduces hours
The right to not disclose your vaccination status
Chapman’s no longer offers unvaccinated employees the option to get rapid COVID-19 tests if they wish to continue coming to the workplace. After the November 28 deadline to disclose vaccination status, unvaccinated employees were put on unpaid leave.
What about people who don’t want to share their vaccination status with their employer? In my experience, it’s difficult to actually prevent employers from terminating employees for failing to disclose.
Employees who work for employers without a COVID-19 testing option will probably lose their jobs if they do not disclose their vaccination status. But these employees will still likely be entitled to severance packages and potentially to human rights damages as well.
READ MORE: The 5 facts you need to know about severance pay, according to an employment lawyer
Employers will have difficulty lawfully firing employees for cause if the worker decides not to get vaccinated. Unless the workplace is covered by a government mandate that allows terminations for declining the vaccine, the worker must be given full severance, which can be as much as 24 months’ pay, and they are likely also entitled to employment insurance.
Is your employer making changes to a certain aspect of your job? Do you have questions about your workplace rights as the pandemic continues?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Jeremy Herman is an employment lawyer at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.