Employer Vaccination Policies: Legal Insights and Court Rulings
How have vaccination mandates led to claims of constructive dismissal?
During the pandemic and thereafter, many employers implemented vaccine policies that mandated vaccination. While employers can require new employees to abide by certain policies and codes, the issue is murkier when employers introduce new policies to cover existing workers. This has definitely been the case with vaccination policies. In some cases, instituting these new policies amongst existing employees may be grounds for constructive dismissal, and in others, employees have claimed that the new policy constitutes discrimination on the basis of religion.
While COVID-19 restrictions have lessened significantly in the last two years, vaccination mandates do not appear to be going anywhere, as indicated by the ruling from the British Columbia Supreme Court, which upheld the mandate issued by Public Health Officer Dr. Bonnie Henry. The mandate prevents workers who are not vaccinated against COVID-19 from returning to their employment and has been upheld repeatedly since first being issued in 2021.
The court upheld the mandate despite the petitioners’ arguments in October 2023 that the mandate was no longer a proportional response to the dangers of COVID-19, given the waning of the severity of the danger posed by the virus. The court also rejected the argument that the mandate violated the Canadian Charter of Rights and Freedoms.
How have courts ruled in cases where employers voluntarily implemented their own vaccination policies?
Finally, the court of British Columbia rejected the argument that the vaccine mandate constituted discrimination on religious grounds, stating that the orders balance the risks being protected against and the human rights, including freedom of religion, of the petitioners.
In short, the courts’ rulings have indicated that if an employee is prohibited from returning to work due to non-compliance with a government vaccine mandate, they will likely have little recourse against their employer, given the employer had no choice but to follow government policy. However, in cases where the employer voluntarily implements their own vaccine mandate, the results have been mixed. While labour arbitrators have ruled that refusal to comply with an employer’s vaccination policy did not constitute just cause for dismissal, in other cases courts have ruled that employer’s decision to place a non-compliant employee on indefinite suspension during such time that the vaccination policy was in place did not constitute constructive dismissal.
How can Whitten and Lublin help?
What has become clear, is that when assessing workplace vaccination policies, the court will look to see if 1) the vaccination policy is a reasonably necessary tool relative to the danger it attempts to mitigate and 2) if reasonable flexibility is afforded on a case-by-case basis for employees when it comes to compliance.
If you are an employee or an employer who is unsure about the effect of non-compliance with a vaccine mandate, Whitten & Lublin is here to assist you. Contact us online or by phone at (416) 640 2667.
Author – Aaron Zaltzman