Big issue in 2022 will be extent of allowable exceptions to mandatory vaccine policies: law prof

The opening salvos have been fired in what several legal experts are saying will be the big story in labour and employment law over the next year — whether employers can dismiss their employees for not getting vaccinated for the COVID-19 virus. And they are also saying it is doubtful there will be a “one-size fits all” answer to that question.

As the response to the pandemic unfurled, businesses from coast to coast brought in requirements that their workers should get vaccinated or face disciplinary action, up to and including dismissal. And some employees who have been dismissed are taking their former bosses to court.

One such person is Andrea Horvath, a B.C. accountant (not the Ontario NDP leader) who was let go from her position with Ducks Unlimited after not getting the jab. As part of her claim for wrongful dismissal, she points out that she is working from home 100 per cent of the time now and, since she will not be facing customers or other employees face to face, there is no need for her to take that step.

In their response to Horvath’s claim, Ducks Unlimited says that although Horvath spent the majority of her time working from home, she was required to attend staff meetings in person and occupational health and safety (OHS) rules requires them to protect their employees and stakeholders, including a duty to prevent COVID-19 infection. But Horvath’s lawyer, Taran Dhanda-Sidhu of Vancouver’s Samfiru Tumarkin LLP, said she disagreed with those assertions.

“[Horvath] works from home and didn’t feel it was necessary, and our position is that an employer doesn’t get to decide what occupational health and safety compliance entails — only the government does,” she said. “It is equivalent to an employer implementing something along the lines of no perfume in the workplace, and then firing an employee for cause for wearing perfume at home.”

And Dhanda-Sidhu said her firm is dealing with similar lawsuits across the country.

“It seems many companies, without being government mandated to do so, are bringing policies to say you have to be fully vaccinated in order to continue working there, whether the individual works from home or not,” she said. “Many of my clients do work 100 per cent remotely, so it just begs the question why the employer needs to know whether somebody at home is vaccinated or not and clearly it has not prevented them from doing their job over the last 18 to 20 months since the pandemic began — so why now? And those people are being put on unpaid leaves of absences or terminated for cause, and that is basically what are we dealing with on most of these files.”

Legal experts say the issue of whether a business can dismiss someone due to their vaccination status is an issue that will play out repeatedly over the next year or two — and there will likely be no clear-cut answer on whether an employer can fire someone for not getting the jab. Stuart Rudner, an employment lawyer and mediator with Rudner Law in Markham, Ont., said a business can impose discipline on someone for breach of policy or insubordination as long as the policy is reasonable, and “that is where all of these cases or going to succeed or fall apart.”

“On the one hand if you are talking about someone who is in a health-care institution and on the front lines, it is pretty reasonable to say they should be vaccinated,” he said. “But at the other end of the spectrum you may have a tech support worker or a sales employee who is working entirely remotely and never comes into contact with customers, and to me there isn’t really a reasonable basis to require they be vaccinated — so firing that person for cause is not justifiable and that is why this is not going to be a one size fits all analysis.

Michael Lynk, a professor of labour and employment law at Western University in London, Ont., said if a mandatory vaccine policy is deemed to be reasonable there are four options companies should consider when dealing with someone who won’t get a jab — rapid testing, allowing the employee to work from home, considering whether that person has a religious or health exemption from vaccination, and then unpaid leave.

“Some employers are saying if you don’t get a vaccination we are going to fire you, and I’ve seen some decisions which have upheld terminations,” said Lynk, pointing to a recent arbitral decision in Ontario which dismissed a number of grievances of Hydro One’s mandatory vaccine policy. “The big issue in 2021 was vaccine mandates, and the big issue in 2022 will be what are the allowable exceptions for mandatory vaccines if the policy itself is deemed to be reasonable. And that likely depends on the workplace.”

Rudner said he expects to see a “tremendous” amount of litigation over the next few years with largely inconsistent results.

“It is going to come back to if you can justify this requirement as reasonable, and that isn’t even one size fits all for most organizations. Even in a health-care setting you may have people working directly with patients, and you may also have staff working remotely or an office space where there are other ways to ensure safety — it is going to really be a fact-specific analysis,” he said. “And the issue is very likely to make it to the appeal level, if not the Supreme Court at some point, because it is a big one and a matter of national importance, because it applies across the country. And we all know anything related to vaccination triggers some very strong opinions.”

Pictured: Michael Lynk, Western University.

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