Levitt: Different rules for vaccinated and unvaccinated employees?

Not only can you ask job applicants whether they have been vaccinated, you can refuse to hire them on that basis

Howard Levitt 7 minute read October 17, 2021

Like last Saturday, I will continue this week to answer all the important questions employers have been asking, and also pierce through the considerable misinformation being provided by laypeople and other lawyers alike.

The topic of employees’ vaccination status has the potential of creating a new rift between employees and employers in an already charged work environment. It’s clearly an issue that has challenged both parties and I recommend handling them with utmost clarity.

What are the legal exemptions to compulsory vaccination?

There are two —  both extraordinarily narrow, even rare.

The first is a medical exemption, essentially limited to a severe, high-risk allergic reaction to a component of a vaccine or to inflammation of the heart. A relatively minor potential adverse medical reaction will not suffice. Too many doctors have been quick to provide notes for their patients exempting them from vaccination for medical reasons which simply do not qualify. Such a note is not dispositive. The College of Physicians and Surgeons has taken a dim view of this practice and has made clear that doctors should not provide such notes unless a genuine medical exemption applies.

The only other exemption is the “creed” exemption. It is even more rare and few Canadians can claim exemption on this basis. It requires being a member of an organized religion, which prohibits vaccinations as a tenet. There is no significant established religion which qualifies. A ‘personal faith’ argument will not exempt you. There are likely only a few thousand Canadians, out of the billions who qualify.

Here are some of the important questions:

Can an employee refuse to work among the unvaccinated?

As long as the workplace is “safe,” i.e. complies with public health guidelines, an employee has no right to refuse to work among the unvaccinated. If they believe the workplace is objectively unsafe, the remedy across Canada is to ask an Occupational Health and Safety Inspector to attend the workplace and either deem it to be safe or not, or require specified modifications. Once those modifications are made or if it is ruled safe, an employee refusing to work can be fired for cause.

Can you fire employees who refuse to vaccinate and is that cause for dismissal without severance?

COVID-19 has destroyed our social and economic fabric, lifestyle, and the physical and mental health of millions of Canadians. Employers have a legal duty, both at common law and under the Occupational Health and Safety legislation in each province, to maintain a safe workplace. Vaccinations are medically the gold standard for protection against COVID-19 and mandatory workplace vaccinations has been promoted by both governments and chief medical officers from coast to coast.

Courts, and even arbitrators, in making decisions respecting evolving law, are obliged to comply with public policy. Although there is no case yet on point, making any prediction uncertain, I consider it likely that both the courts and arbitrators will find that employers have cause to dismiss, without severance, employees who work in close proximity with others for refusing to be vaccinated. Employees who are fired for refusing to vaccinate but work in positions where they are in close proximity to others, may issue a claim but I recommend that they should not invest very much in the litigation until there is a precedent. In my view, they are likely to lose.

Can employees refuse to work based on anxiety over COVID-19?

Some employees are sending in medical notes, insisting that they should not be returning to the office because attending the office (or taking public transit), makes them “anxious” or “stressed.”. That does not provide a defence unless there is a genuine psychiatric “disability” such as an anxiety disorder. What I recommend is that the employer’s doctor call the employee’s doctor and determine whether there is a genuine operative qualifying disability. There seldom will be. Alternatively, you could send them for an independent medical examination with a psychiatrist for an assessment.

Can you have different rules for vaccinated and unvaccinated employees?

You can. Some employees impose onerous obligations on the unvaccinated, such as extensive personal protective equipment, social distancing, and regular testing at their own expense. Some clients have the unvaccinated attend separate buildings. Is that discriminatory? Yes. Is it illegal discrimination? No.

I caution against the policy of permitting the unvaccinated to work from home as the vaccinated will view that as a perk, arguing that, while they performed their corporate and civic duty by getting vaccinated, the unvaccinated were “rewarded” by being permitted to work from home.

Can you ask applicants and employees for their vaccination status?

Not only can you ask job applicants whether they have been vaccinated, you can refuse to hire them on that basis, subject to the narrow creed and medical exemptions explained above. If you require knowledge of employees’ vaccination status to decide what protections to put in place or because you have mandated vaccinations in the workplace, you can also ask existing employees about their status.

What if an employee lies about their vaccination status?

That is cause for dismissal. Also, if an employee lies about their vaccination status and is permitted to work closely with others and then someone can prove that they then contracted COVID-19 from that person, the dishonest employee will be liable for damages to a person contracting the virus. If that third party dies or is permanently disabled, those damages could be in the millions of dollars.

If a policy requires employees to be tested, must the employer pay for that?

If the employer’s policy requires compulsory vaccinations and employees are seeking an exemption from that, the employer can require that employee to obtain it at their own expense. Many hospitals provide such tests for free.

What proof of vaccination are you entitled to?

You can ask to see employee’s vaccination certificates, on paper or online. You need not accept oral attestations.

When employers require employees to be vaccinated, what options are there if an employee refuses?

You can either dismiss them or place them on an unpaid leave of absence. I recommend the former to avoid the slight risk of a lawsuit both for the unpaid time off and for wrongful dismissal or constructive dismissal following that. I believe that the employer will succeed in such a case but the law remains untested.

Are there any current risks around employees laid off because of COVID-19?

A layoff is a constructive dismissal. If the employee accepted the layoff, there is no risk. However, once some employees are recalled, the employees who are not recalled can claim that the layoff was only for the period that the company was not operating, and should trigger a constructive dismissal.

What is the impact of COVID-19 on wrongful dismissal damages?

The cases are mixed on whether being terminated during COVID-19 increases the notice/severance period. It depends on whether the employee can produce evidence that COVID-19 made it more difficult for that employee to become reemployed. In one case, which I dealt with in an earlier column involving an IT professional, the court noted that IT professionals are in greater demand during COVID-19 rather than less. As a result, the notice/severance was not increased.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.