Back in July, I blogged briefly about the issues of Mandatory COVID Vaccinations vs. Civil Liberties in North America and To Mandate COVID Vaccinations or Not?. At the time, these issues had more to do with colleges mandating full COVID vaccinations for students in residence or on campuses and with governments requiring proof of vaccination for citizens to enter certain establishments such as bars and restaurants. Now, an additional issue has increasingly emerged as the result of employers and governments requiring COVID vaccination for employees in selected sectors, especially in Canada.
For example, on October 6th, Prime Minister Justin Trudeau unveiled Canada’s new mandatory vaccine policy. It requires the core public service, air travel and rail employees to be fully vaccinated against COVID-19 by the end of this October. The federal vaccine mandate mirrors provincial policies, such as in Nova Scotia where all school and health-care workers are required to have two doses of a COVID-19 vaccine by the end of November. In the health care sector, several hospitals across the country have implemented mandated vaccination requirements for all employees. Such policies often have deadlines after which unvaccinated employees will face suspensions without pay and possibly termination down the road. In Ontario, the government has now mandated that all workers in long-term care residences must be fully vaccinated in order to continue working in such facilities.
Needless-to-say, Canada is facing a potential wave of terminations tied to mandatory workplace vaccine policies as a growing number of employers require workers to be fully inoculated against COVID-19 — or risk losing their jobs. Most legal experts believe that the rights of individual workers will be overridden by the employer’s obligation to make sure the workplace is safe and meet their health and safety obligations toward staff, clients and the public. It is recognized that there is a delicate balance between the individual rights of workers, such as by offering reasonable accommodations and maintaining a safe work environment. Recent reviews of Canadian cases involving the balance between individual rights and public health have sided with the latter. It is noted that while tribunals recognize that rights of individuals are important, in the time of a pandemic reasonable limits are going to be given broad scope.
This situation has led to two additional issues: one being the terminated individual’s right to some form of compensation (e.g. severance pay), and the other being related to workers simply quitting their jobs and thus creating a shortage of skilled labour for employers. Fortunately, given the current rate of COVID vaccination in Canada for adults 12 and over (slightly more than 80 per cent of all Canadians), the impact on most sectors will be lessened. Except for a few workplaces, the majority of health care workers, education workers, federal and provincial public servants have received a least one dose of a COVID vaccine. Even public and private sector unions have generally supported vaccination policies for their workers, while ensuring that reasonable accommodation for unvaccinated workers is part of those policies, particularly where exemptions are granted for medical reasons. Where mandated vaccination by an employer is seen as imposing a new rule and one that was not part of the original employment agreement, some legal experts believe that the policy’s implementation may be determined to be a termination without cause. This becomes a case under contract law whereby severance pay would most likely have to be paid to the worker.
Overall, mandating vaccination for workers in certain sectors and by employers with particular valid health and safety considerations should not be taken too lightly. Such policies represent one of many implemented to control the spread of the delta variant, and can be justified as another temporary public health measure. In most cases, employers will have to continuously consult with existing employee representatives and unions to ensure that individual rights are being respected where reasonable. Otherwise, numerous cases involving unvaccinated employees may end up before labour tribunals or the courts.
FROLITICKS 
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