Tuesday, January 18, 2022

Lawyers say crores of unvaccinated employees are filing wrongful dismissal claims against employers

Several employers in Canada began implementing vaccine mandates last fall, encouraged by public health guidelines regarding the efficacy of COVID-19 vaccines against infection and serious illness.Carlos Osorio / Reuters

According to lawyers, employers across the country have begun firing employees who haven’t been fully vaccinated against COVID-19, which they say from vaccine-related matters and claims of wrongful dismissal. are full.

The flood of cases sets up a significant legal test of a vaccine mandate imposed by employers, which pits workers’ individual rights against employers’ health and safety concerns amid the nearly two-year-long pandemic.

Leading labor and employment lawyers told The Globe and Mail that cases involving the termination of non-vaccinated employees depend on several factors, including whether employees are required to come to work, the details of an employee’s initial hiring contract, and whether the employee Unrelated to grounds other than medical or religious ones.

Lior Samfiru said, “In my 20-year career, I’ve never had so many calls, e-mails, questions about a single issue because I’ve had employees let go or be put on indefinite leave.” Was.” , co-managing partner at Toronto-based labor and employment law firm Samfiru Tumarchin LLP.

Sean Parker, a Calgary-based partner at Bay Street law firm Osler, Hoskin & Harcourt LLP, told The Globe that he too is beginning to see a wave of dismissals from employees who refuse vaccinations. “We are seeing this mostly in the private sector. These employees are now taking the services of lawyers and are trying to carry forward the severance pay.”

Mr Samfiru, who represents employers and employees, told The Globe that his firm is currently handling hundreds of cases in which employees have been fired for their vaccine status. In almost all of them, employees were terminated with cause, meaning they were denied severance. “There are thousands of people who have been put on leave without pay or have been flat-out terminated without compensation. This is a huge issue and I think a lot of employers don’t understand its legality.”

Whether or not an employee can be fired for not following an employer’s policy on vaccines is a complex issue, lawyers say, complicated by the fact how vaccine mandates can be enforced in workplaces, There is no definitive court ruling in Canada on this.

“The question we’re all trying to answer is, can an employer terminate an employee in a non-federal setting for not being vaccinated? In my view, they can’t except in very specific circumstances.” “said Lai-King Hum, founder of Hum Law, a boutique law firm in Toronto that deals specifically with labor and employment issues.

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Several employers in Canada began implementing vaccine mandates last fall, encouraged by public-health guidelines about the efficacy of COVID-19 vaccines against infection and serious illness. As soon as the full vaccination deadline passed (for most employers, the requirement means receiving two shots of the vaccine), employee terminations began. About 20 percent of Canadians over the age of 5 are not fully vaccinated.

Last week, the city of Toronto fired 461 employees for not complying with its vaccine mandate. The Toronto Transit Commission also announced this week that it would terminate 354 employees who refused vaccinations.

The Globe contacted more than 30 employers who had established mandatory vaccinations – including Canada’s five largest banks, most major law firms, insurance companies and accounting firms – to understand how the policies would apply to those employees. who chose not to vaccinate without proper medical or religious exemptions. Most employers declined to specify whether they had or would terminate non-vaccinated employees.

“The complication that employers are beginning to realize is that if your employment agreement doesn’t state from the outset that vaccines are mandatory, then if you want to eliminate them, you’re going to have to pay an employee. That cost increases,” said Ms. Hum.

For non-federal employees, the question for the courts is whether unvaccinated employees should be compensated in the form of pay. In a union setting, workers could potentially be reinstated in their jobs if an arbitrator ruled in their favor.

Some employers told The Globe that they intend to terminate employees who did not vaccinate. Law firm Gowlings WLG LLP said non-compliance with its vaccine mandate without an approved waiver would result in “bans, up to and including termination of employment”.

Insurer Canada Life, which employs more than 10,000 employees, said in a statement that employees who “fail to certify their vaccination status or undergo rapid testing without valid and documented human rights waivers” will be disciplined. Accounting firm KPMG Canada even said that employees who refuse vaccination will be terminated for “reasonable cause,” meaning they will receive no severance. .

Andrew Monkhouse, an employment attorney in Toronto who has been handling a number of cases related to vaccine firings, said he believes employees terminated without cause have an especially good argument if the employee proves it. that their unaffiliated condition did not endanger the health and safety of the workplace. “I think you’ll have an exceptionally strong base if you work from home,” Mr Monkhouse said.

In Maple Ridge, B.C., a woman working from home was terminated without severance from her job as an accountant with Ducks Unlimited Canada—a nonprofit focused on the conservation of wetlands—”personal out of choice” for not having been vaccinated. Show court documents. The woman, Andrea Marlene Horvath, is being represented by Mr Samfiru’s firm, and filed a lawsuit last week seeking damages for up to 13 months of her six-figure salary.

“We always have to ask: What is the purpose of the policy? An employer would say, it is to keep the workplace safe. So how does that affect the vaccine status of an employee working from home in any way?” Mr. Samfiru said.

Mr Monkhouse points out that the position of vaccine mandates at workplaces is becoming increasingly difficult as more and more vaccinated Canadian workers become infected with Omicron, the latest major COVID-19 variant. Preliminary studies have indicated that Omicron, compared to previous variants, causes a significantly higher number of breakthrough infections between vaccinated, even though this group becomes less severely ill than unvaccinated individuals.

“Forcing someone to get vaccinated is an entirely different moral imperative when the primary benefit of the vaccine is that person’s own safety, as opposed to the safety of others,” he said.

While there are still no court decisions on the implementation of vaccine mandates in non-federal workplaces, there are several legal decisions in Ontario involving union employees that provide some insight into how these cases may play out in the courts.

In November, the Power Workers union – the main union for electric utility workers in Ontario – filed a complaint against the Electricity Safety Authority, a provincial body’s mandatory vaccine policy, alleging that the policy was a significant “management’s over-reaching exercise”. ” represents. rights,” and violated the privacy of employees.

The arbitrator ruled in favor of the union, arguing that because vaccine mandates were never part of a collective agreement, there was no legal requirement to vaccinate ESA employees regardless of the fact that Canada is involved in a global pandemic. Can’t be. The arbitrator, in fact, wrote in his decision that “vaccination of the population was necessary to secure the fragile health care system and ultimately to put this pandemic behind us,” but that notion could not override the collective agreement.

In contrast, an arbitrator ruled against a mandatory vaccine complaint filed by the United Food and Commercial Workers union against employer, Paragon Security, because it stated in the UFCW collective agreement, years before the pandemic, that vaccinations and vaccinations were necessary for workers. .

“It is more clear cut for union employees because you have a collective agreement to rely on,” Ms. Hum said. “But I think eventually there will be a case that goes to court that sets a precedent on this issue.”

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