CHAUDHRI: Thousands of unvaccinated employees will be on administrative leave or suspended

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Unvaccinated employees are struggling this week.

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I have spoken with many workers who are now, or will soon be, suspended or on unpaid administrative leave. Most of the employees in this group told me that they never intended to get vaccinated. Some said they need to know more about the risks first or are waiting to hear from their doctors about the requirements for an exemption.

I have heard stories of complicated health conditions, devout religious views, and privacy concerns at work from people who do not want to receive the COVID-19 vaccine. Vaccination is not a black and white decision for some. I realized that I understood the fears and concerns of at least some of the people I spoke to. It is unequivocal that some people fear or resist the idea of ​​mass vaccination so much that they are willing to risk their jobs.

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These conversations lead me to some realizations:

We are in the midst of a worker shortage in Canada and we don’t seem to know it yet; and,
Unvaccinated employees are considering their legal rights and taking legal action.

Employers of all kinds are struggling too. Some of those who moved quickly to implement mandates have found themselves navigating new territory; bogged down in the administration of ensuring staff are vaccinated and carefully handling accommodation requests from employees who remain on the fence or vehemently refuse to be vaccinated.

Canadian political leaders have come together to implement mass vaccination policies, but may not have considered the necessary but significant collateral damage that we must now address. The fact is, a significant portion of our workforce will be out of work even though jobs are available. Based on recent updates to the Service Canada website, it appears that those who do not receive the vaccine, and are suspended or terminated as a result, may also be ineligible for EI.

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As a small business owner, I strongly believe that vaccination is the best way forward for businesses and our economy to grow. But the sad reality is that our country will undoubtedly be left with a glut of jobs when unvaccinated employees are finally laid off as the deadlines for vaccination loom at many large employers.

Employers must start laying the foundation now for how they intend to hire and secure a workforce they can grow with in the future. Businesses will find themselves in need of workers, especially if vaccine mandates have left them with a lighter workforce.

Unvaccinated employees also need to be smart. Communicate as much as possible with your employer about whether or not you can get the vaccine sooner. Talk about remote work and testing until you have more time to explore your options. Leaving vaccination on the table as an option is your best chance to keep your job uninterrupted.

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The introduction of mass vaccination mandates has opened a door for employers to observe previously sealed employee lives. Employees are gathering details about his medical history to give credence to his position on vaccination resistance. They visit religious leaders seeking interpretations of their sacred texts; offering this evidence in the hopes of keeping their jobs. It is a messy business and unprecedented on both sides. There is no easy answer.

However, one thing is for sure, employers who show a willingness to compromise and employees who behave reasonably will be favored when our courts finally consider the issue of unvaccinated employees.

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To our questions this week:

Q. I make over $ 100,000 and I worked for my employer for less than two years when I was laid off last week for restructuring. They offered me six weeks pay, no bonus. I know I didn’t work there for a long time, but is it worth having a lawyer review my case?

A. You should always have a termination letter reviewed to understand what your rights are and whether or not you may be entitled to more than what has been offered to you. If you do not have an enforceable employment contract stating what you are entitled to in the event of termination, the common law test applies. This test comes down to how long it will take you to find a similar job with a similar pay rate. While the interpretation of the evidence may be nuanced, if it is reasonable to expect it to take more than six weeks to rehire, you will likely want to find out if you can reasonably seek more in damages. Also, speak to an attorney about whether or not you are entitled to the lost bonus payment. Employees often are.

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Q. I have not had the vaccine. My employer says that I can do an antigen test three times a week on my own. It doesn’t seem fair that I have to pay out of pocket. Would you qualify this as discrimination?

A. No, this does not qualify as discrimination based on current law. Guidance from the Ontario Human Rights Court is that workplace vaccination mandates are generally permissible and that employers must make reasonable medical and religious accommodations for those employees who request them. If you are not seeking one of these accommodations, your employer is technically not required to make special accommodations for you if you choose not to receive the vaccine. You may ask to split the cost with your employer as a compromise.

Do you have a problem in the workplace? Maybe I can help! Email me at sunira@worklylaw.com and your question may appear in a future article.

The content of this article is general information only and not legal advice.