October 7, 2021
HALIFAX — 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, legal experts say.
Governments, institutions and companies have spent months hammering out vaccine mandates in a bid to curb an unrelenting pandemic fuelled by variants.
“We’ve been contacted by thousands of people from across Canada who all have these ultimatums in front of them saying they have to be vaccinated by a certain date or risk losing their jobs,” employment lawyer Lior Samfiru, a partner with Samfiru Tumarkin LLP, said in an interview.
“We’re going to see the biggest wave of terminations we’ve seen since the pandemic started,” he said, noting that his firm has been contacted by workers in a range of industries including health care, education, banks, construction and restaurants.
“It will be significant.”
Prime Minister Justin Trudeau unveiled Canada’s new mandatory vaccine policy on Wednesday. It requires the core public service, air travel and rail employees to be fully vaccinated against COVID-19 by the end of 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.
Private companies have also developed corporate vaccine mandates, with looming deadlines for staff to be fully vaccinated.
The situation has left legal experts grappling with the tension between protecting the rights of individual workers and ensuring employers meet their health and safety obligations toward staff, clients and the public.
There’s also the question of what reasonable accommodations or exemptions should be available to workers and whether unvaccinated employees who are ultimately terminated are owed compensation.
“There’s an overriding obligation on the employer to make sure the workplace is safe,” said Ron Pizzo, a labour and employment lawyer with Pink Larkin in Halifax.
“With COVID being an acute illness with the potential for loss of life, the risk of harm is pretty high,” he said. “Employers are imposing those policies for valid reasons as they have a duty to keep their workplace safe.”
Pizzo said his firm is getting quite a few calls from people who do not want to vaccinate and want to fight employer vaccination requirements.
Still, he said he’s not expecting mass resignations that will leave companies without enough workers given the relatively high vaccination rate among the general population. Slightly more than 80 per cent of all Canadians aged 12 and older are fully vaccinated.
Pizzo added that many law firms are introducing mandatory vaccination policies for face-to-face meetings in the office.
Wayne MacKay, professor emeritus at the Dalhousie Schulich School of Law, said employers have to balance the individual rights of workers, such as by offering reasonable accommodations, with maintaining a safe work environment.
But he said a recent review of cases involving the balance between individual rights and public health have sided with the latter.
“I went through a lot of the cases and tribunals and the great majority are saying that while individual rights are important and you should do everything you can to respect them, in the time of a pandemic, reasonable limits are going to be given broad scope,” MacKay said. “Most restrictions that governments are doing have been found to be reasonable given threat of COVID-19.”
While these cases didn’t deal specifically with vaccine mandates, he said the same reasoning would likely apply.
MacKay said there are very few legitimate reasons to seek an exemption to a vaccine policy, such as for medical reasons.
Yet he said some workplaces will likely have a stronger need for a mandatory vaccines than others.
“If you can work exclusively from home, it’s not a very compelling argument at all to require that person to be vaccinated as part of their employment,” MacKay said. “If you are in the public sector and serving the public, then that is a much more credible case for requiring vaccinations.”
As for whether workers who are terminated for refusing to vaccinate are entitled to compensation, he said it depends on the work environment, how valid the need for the policy is and whether the worker was unionized or not.
Samfiru suggested terminated workers who are not paid sufficient compensation could claim wrongful dismissal.
“The employer is imposing a new rule, one that was not part of the original employment agreement,” he said. “That becomes a termination without cause and severance has to be paid. Beyond that, there could be a human rights claim as well.”