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Balancing Interests: Employer-Imposed COVID-19 Vaccinations

by Samantha J. Neill, Lawyer
Administrative Law • Arbitrations • Employment Law • Family Law (Litigation & Alternate Dispute Resolution) • Real Estate

Since the roll-out of COVID-19 vaccines, our team has received several inquiries related to employer-imposed vaccine mandates. Often, these inquiries are made by vaccine-reluctant or opposed employees looking ways to resist these mandates while still preserving employment. They want to know: what, if anything, can be done?

Before we delve into the contextual and sometimes competing factors at play, it’s important to distinguish between unionized and non-unionized workplaces. Unionized employees have the benefit of union representation via a Collective Agreement. In non-unionized workplaces, however, employees must sort out for themselves how to proceed when faced with the choice of complying with a vaccine policy or being dismissed from employment. 

Misinformation and misapprehension

Some of the inquiries we field include references and/or links to websites hosted by groups and/or organizations promoting the “anti-vax” perspective. A few clicks down the Internet rabbit-hole reveals serious misapprehension of the purpose and effect of the Canadian Charter of Rights and Freedoms, 1982, and a woefully one-sided perspective on the extent of individual rights. 

For example, one website included letter templates for citizens to print off and issue to different authorities, including employers and schools. These letters assert broad claims by the signing party of Charter violations and Human Rights Violations, and state that any individual imposing the vaccine mandate as an agent of a higher authority can and shall be held personally liable and even criminally responsible for interfering with individuals’ right to engage in employment, freedom, worship, etc. 

This misinformation, and the extent to which individuals may choose to blindly rely on the information and forms provided by these websites, inspired this article. Our intent is to offer support and as comprehensive information as possible for our current and prospective clients grappling with this issue. There are two sides to this coin: Charter considerations and employer limitations.

What does (and doesn’t) the Charter do?

First, the Charter exists first and foremost to protect against discrimination—both direct and indirect—in government policies and/or laws and/or the ways that such policies or laws are written and/or implemented. Claims of Charter violations generally only arise in circumstances of government overreach which cannot be demonstrably justified in a free and democratic society. The Charter does not apply to private enterprise. 

Employer vaccination limitations and employee exemptions

Second, unless vaccinations are government mandated, an employer cannot impose a blanket policy requiring that employees be vaccinated or face dismissal. It would therefore be illegal for an employer to terminate an employee “for cause” because they refused to receive the COVID-19 vaccine. Even so, contrary to popular belief, employees do not have a guaranteed right to persist in their chosen employment for so long as they wish, no matter what. Employers are entitled to dismiss an employee at any time and for any non-discriminatory reason, provided they give the employee appropriate notice, or a severance pay in lieu thereof. 

If, however, an employee has a legitimate reason why they cannot be vaccinated, such as disability/health or religious reasons, the employer is obligated to attempt to accommodate the employee in question.  Otherwise, The Saskatchewan Human Rights Commission has stated clearly that it will not accept complaints of discrimination from members of the public who do not fall under the narrow exemptions and who lose employment due to their refusal to receive the COVID-19 vaccine. Opinions about medical treatment options, and the decision to opt out of such, are not among the enumerated “prohibited grounds”. 

No exemption—now what?  

In situations where there is no such exemption, the primary concern shifts from employer capabilities to questions related to employee severance entitlements. 

At the time of writing there is no case law to refer to in determining whether an employee’s termination for refusing to comply with an employer’s vaccine mandate can or should be deemed to be “with cause” or “without cause.”  If a termination is “without cause” then the employee in question would be entitled to receive a severance pay in lieu of the appropriate notice period. The amount of severance depends both on the length of employment, and on whether the employee pursues such via The Saskatchewan Employment Act (“the Act”) or via the common law through the Courts. The Act entitles employees to a severance of between one week and 8 weeks, whereas the common law provides for a severance of up to approximately 24 months. 

Undoubtedly, there are numerous employers that will cite their obligation to provide a safe and secure workplace for employees and to members of the public as a justifiable rationale for imposing vaccine mandates. It’s easy to see how these obligations could act as a shield from employee claims of entitlement to severance pay because they were terminated for refusing to be vaccinated.  

When an employer in question operates in the area of paramedical or therapeutic services, an employer could raise either or both of the following defenses:

1.)    Its obligation to provide a safe workplace for its employees pursuant to Occupational Health and Safety Regulations; and/or

2.)    That its mandate for employees to be vaccinated against COVID-19 qualifies as a bona fide occupational requirement (BFOR).  

Thus, where an employee might claim wrongful or unlawful dismissal and seek a severance payment for termination without cause in these circumstances, OH&S compliance or a BFOR defenses could be raised. To successfully raise this defense, the employer would have to show that its obligations and/or requirements in this regard are legitimate.  If the employer is able to effectively do this, then the employee in question would not be entitled to a severance pay.  

What does this mean?

Given the competing interests, it is likely that OH&S defenses will come up in any workplace with more than two employees and/or which works with the public, and that the BFOR defenses is most likely to emerge in medical/healthcare services or industries where employees work in close quarters or in environments requiring artificial/sterile atmospheres such as labs or mines. These are settings in which employers are most likely to successfully utilize this defense as it involves a balancing of individual rights against the rights of coworkers and/or members of the public. In either case, it is likely that an employer in this scenario could be found to be fulfilling its obligation to provide a safe workplace for its other employees, or that its vaccine mandate has become a bona fide occupational requirement (BFOR). 

In the event an employer gives notice of the coming implementation of a vaccine mandate, it is entirely possible that such employer could employ the practice of providing multiple notices to employees who refuse to be vaccinated specifically so that it can clear the notice hurdle, and assert that any termination for this reason was on a “with cause” basis, and thus no severance is due.

DISCLAIMER: The foregoing is the opinion of the writer, and the reality of this situation and how the Courts will approach it remains to be seen. We continue to invite clients and potential clients to contact Naidu Legal with questions about this and other employment-related issues.