Labor Lawyers Prepare for First Wave of COVID-19 Layoffs as Vaccination Warrants Come into Force

Canada faces a potential wave of layoffs linked to mandatory workplace vaccination policies, as a growing number of employers demand that workers be fully vaccinated against COVID-19 – or risk losing their jobs, according to legal experts.

Governments, institutions and businesses have spent months crafting vaccine mandates in an attempt to curb a relentless pandemic fueled by variants.

As employers’ deadlines for being fully immunized approach, unvaccinated workers could soon be put on unpaid leave or fired, lawyers say.

“We have been contacted by thousands of people across Canada who have all these ultimatums in front of them saying they need to be vaccinated by a certain date or risk losing their jobs,” said Lior Samfiru, labor lawyer. , partner of Samfiru Tumarkin LLP. , said in an interview.

“We are going to see the biggest wave of layoffs we have seen since the start of the pandemic,” he said, noting that his company has been contacted by workers from various industries, including healthcare, education, banking, construction and restaurants. .

“It will be important.”

Mandates raise many questions

Prime Minister Justin Trudeau unveiled Canada’s new policy on mandatory vaccines on Wednesday. It demands that employees in the basic civil service, air transport and railways 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 must receive 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 immunized.

The situation has left legal experts grappling with the tension between protecting the rights of individual workers and ensuring that employers meet their health and safety obligations to staff, customers and the public.

There is also the question of what reasonable accommodations or exemptions should be available to workers and whether unvaccinated employees who are ultimately made redundant should be compensated.

“The employer has a primary obligation to ensure that the workplace is safe,” said Ron Pizzo, labor and employment lawyer with Pink Larkin in Halifax.

“Because COVID is an acute illness that can lead to death, the risk of harm is quite high,” he said. “Employers are imposing these policies for good cause because they have a duty to protect their workplace.”

Pizzo said his company received many calls from people who did not want to be vaccinated and who wanted to fight against employers’ vaccination requirements.

Still, he said he didn’t expect massive quits that would leave companies without enough workers given the relatively high vaccination rate in the general population. Just over 80 percent of all Canadians aged 12 and over are fully immunized.

Pizzo noted that many law firms are introducing mandatory vaccination policies for face-to-face meetings in the office.

Most government restrictions are “reasonable”, lawyer says

Wayne MacKay, professor emeritus at the Dalhousie Schulich School of Law, said employers must balance individual workers’ rights, for example by providing reasonable accommodation, with maintaining a safe working environment.

But he said a recent review of cases involving the balance between individual rights and public health has sided with the latter.

“I have looked at many cases and courts and the vast majority say that while individual rights are important and you must do everything possible to respect them, in a time of a pandemic, reasonable limits are going to be far reaching,” MacKay said. “Most of the restrictions imposed by governments have been found to be reasonable given the threat of COVID-19. “

While these cases do not specifically deal with vaccination warrants, he said the same reasoning would likely apply.

MacKay said there are very few legitimate reasons to seek an exemption from a vaccine policy, such as for medical reasons.

Still, he said some workplaces are likely to have a greater need for mandatory vaccines than others.

“If you can work exclusively from home, that’s not at all a very compelling argument for requiring that person to be vaccinated as part of their job,” MacKay said. “If you’re in the public sector and you serve the public, then it’s a much more credible case for requiring vaccinations.”

As to whether workers fired for refusing to be vaccinated are entitled to compensation, he said it depends on the work environment, the validity of the need for the policy and whether the worker is unionized. or not.

Samfiru suggested that dismissed workers who do not receive sufficient compensation could claim wrongful dismissal.

“The employer is imposing a new rule, which was not part of the original employment contract,” he said. “It becomes dismissal without cause and severance pay must be paid. Beyond that, there could also be a human rights complaint. “

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About Bernice Dyer

Bernice Dyer

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