As COVID-19 vaccine mandates become a political issue, experts are urging companies who are already introducing such policies to use incentives and compassion before resorting to terminations — which could open up a legal can of worms.
Already, many of Canada’s major banks and some top employers like Air Canada are following the lead of the federal government, which announced earlier this month that federal employees must be fully vaccinated before returning to their workplaces.
Although Liberal Leader Justin Trudeau has warned of “consequences” for those who don’t comply with such mandates other than for medical or religious reasons, experts and unions say the soft approach may prove to be more effective.
“I think most legal analysts are saying use the carrot and save the stick for later, and try to use as many incentives as possible,” said Robert Russo, a labour and employment law expert and a lecturer at the University of British Columbia’s Peter A. Allard School of Law.
Companies that have announced vaccine mandates appear to be following this approach, Russo notes, by dangling the prospect of daily COVID-19 tests and mandatory masking as measures employees can avoid simply by getting vaccinated.
Some employers in the United States are getting even more creative. Delta Airlines, which announced its mandate on Wednesday, warned that it will raise health insurance premiums for unvaccinated employees by $200 a month to cover COVID-19-related hospital costs.
“Those sorts of things are better at persuading employees instead of threatening terminations,” Russo said.
“It’s possible, though, for employers who feel they have no choice after trying those incentives to then resort to terminations if they feel that’s what’s necessary.”
Although some human resources experts and unions have come out against terminations, David Zweig, a professor of organizational behaviour and HR management at the University of Toronto, says employers ultimately have a responsibility to create a safe working environment.
“I agree incentives are better, but at a certain point you’re going to run into a segment of the population that is unmovable, and the stick may be necessary,” he said.
“People have to make a choice: do you want to continue to contribute to society and not put others’ safety at risk? And if employers are now saying you may face repercussions, people have to accept that and decide what they want to do.”
Russo noted that terminations of unvaccinated employees would be limited only to private employers like small businesses who don’t deal with unions and collective agreements.
Those employers could terminate an employee without cause under the Canada Labour Code — provided they also provide notice of dismissal and severance pay — though they could also face an unjust dismissal complaint or even lawsuits.
The situation gets more complicated when larger industries whose employees are unionized start to mandate vaccines, Russo added.
“You may have some unions where there’s a small or sizable minority of employees who don’t (support vaccination),” he said. “And so the unions kind of have to speak for both sides. And, certainly, they want to protect the job retention for all their employees. So they’re in a bit of a tricky spot there.
“I expect to see more labour cases and arbitration, and labour boards examining, ‘Well, this workplace where people are close together, maybe a mandate is justified here,’ whereas if a worker can reasonably work remotely then that could be a solution. There will be a lot of work-specific cases until this all gets sorted out.”
Zweig agrees the fight over mandates and individual rights will continue for some time. But unless people have a legitimate medical or religious reason that proves they’ve been discriminated against, he expects many of those complaints will not go far.
“If you believe the earth is flat, that’s fine, as ridiculous as that is. But you’re not putting anyone else in harm’s way,” he said.
“But believing that you cannot or will not take a vaccination does put other people in harm’s way. And so it’s not a fundamental human right for us to go around putting other people at risk if there is an alternative like a vaccine.”
Many unions across Canada have come out in favour of vaccine mandates for employees, provided that employers focus on alternative measures for those who refuse or who cannot be vaccinated for medical or religious reasons.
The Public Service Alliance of Canada, which represents federal government workers, said in a statement responding to Trudeau’s comments about “consequences” that “using discipline and termination to enforce (mandates) is unacceptable.”
Polling has shown most Canadians are supportive of vaccine mandates, at least for some sectors, like health care and education.
A recent Ipsos survey for Global News found at least 80 per cent of those surveyed thought vaccinations should be mandatory for health-care workers, teachers and public sector workers.
A study from the auditing firm KPMG, meanwhile, found that of 500 small and medium businesses polled, 62 per cent were either implementing or planned to implement a vaccine mandate.
Support for mandates has largely grown as the highly contagious Delta variant spreads across the country, sparking what health officials have already determined is the “fourth wave” of the pandemic.
Yet the issue of mandatory vaccinations has proven to be a contentious one on the campaign trail, with Conservative Leader Erin O’Toole accusing Trudeau of trying to drive a political “wedge.”
NDP Leader Jagmeet Singh, meanwhile, stands firmly in favour of a vaccine mandate for federal workers — though he has criticized Trudeau for a lack of details in his plan.
Singh has also called for domestic vaccine passports and mandatory vaccine rules to be in place by Labour Day.
Trudeau and the federal government have not detailed exactly what consequences workers should face if they refuse vaccinations for reasons beyond medical and religious ones.
The government told Global News it is still “consulting with stakeholders” about best policies before announcing anything specific, either for federal workers or travellers.
Russo says governments should let employers make decisions on introducing a mandate and how to enforce it, saying it will be “difficult” for elected officials to lead the way without running into Canadian charter violations.
“There’s a difference between an employee who has a choice to work somewhere (with a mandate) or find a job somewhere else, and being forced to be vaccinated (by a government),” he said.
“It all comes back to the carrot versus the stick.”
–With files from Global’s Rachel Gilmore and The Canadian Press