As various governments across Canada are easing COVID-19 restrictions, some companies are changing their internal vaccine policies.
Here are some of the most common questions our employment law firm, Samfiru Tumarkin LLP, receives about people’s rights regarding their employer’s vaccine mandate.
Can I be brought back to my job if my employer drops their vaccine mandate?
If you are on an unpaid leave because you decided not to get vaccinated, your employer may decide to bring you back, regardless of your current vaccination status.
If you accept a recall to your position, you should provide a written explanation to your employer that your return to work does not amount to condoning their vaccination policy or being placed on an unpaid leave. This step is important, since being recalled undermines your employer’s contention that the unpaid leave was necessary in the first place. Putting your position in writing could be useful as evidence if you commence legal action against your employer in the future.
READ MORE: 5 things you should know about mandatory vaccination policies at work
Can my employer make changes to my job when I return from an unpaid leave?
Your employer doesn’t have the right to make significant changes to your job, including pay, position and the duties you perform, without your permission. It has an obligation to return you to the role you had prior to your leave.
If you are recalled to a different job or to a position where your status has been eroded, you may be entitled to consider your job terminated. This would allow you to bring a claim for constructive dismissal and leave your job with a full severance package, which can be as much as 24 months’ pay.
READ MORE: HBC employee’s ‘status change’ a lesson in constructive dismissals
Can my employer let me go due to my vaccination status if restrictions are lifted?
Practically speaking, you can’t stop your employer from firing you, but you can and should seek severance if you are let go.
Unless there is a government mandate in place for the industry you are employed in, your failure to get vaccinated against COVID-19 does not amount to a termination for cause.
Without such a government mandate in place, your employer owes severance pay if it decides to permanently end the working relationship.
READ MORE: Partying on the job, criticizing mask wearing – reasons to fire employees for cause or not?
If I’m put on an unpaid leave due to my vaccination status, when can I claim constructive dismissal?
If there is no government mandate in place, you can claim constructive dismissal the moment you are placed on an unpaid leave of absence.
This is because your employer’s decision to unilaterally impose a mandatory vaccination policy is a significant change to the existing conditions of your job. This type of change to the terms of your employment may not be imposed by your employer without your consent.
READ MORE: Do you lose severance if you don’t sign by your company’s deadline?
Whenever a significant change is made to your job, you should contact an employment lawyer, like the ones at Samfiru Tumarkin LLP, to learn what your options are. This applies if your employer reduces your hours of work, downgrades your job title, or adjusts your salary or commission.
If there is a change to your employment that you are unsure of or uncomfortable with, it’s a good idea to seek legal advice immediately.
If there is another COVID wave, can my employer reintroduce a vaccine mandate?
It is unlikely that you can prevent your employer from reintroducing a vaccination policy that would require you to get a COVID-19 shot.
If, however, you have been recalled to your job without any change in your vaccination status and your employer later reintroduces its own vaccine mandate, the courts will likely view that mandate as unreasonable, especially given the fact that many provinces have said that they do not have plans to reimpose restrictions despite a surge in cases of the BA.2 subvariant of COVID-19.
Placed on an unpaid leave of absence or brought back to the workplace with changes to your employment? Need a severance package review?
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.
Greg Sills is an employment lawyer and senior associate 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.