Vaccination and Terminations in Federally Regulated Workplaces
If you are an employee working in a provincially regulated workplace, absent discrimination upon illness or religious grounds, an employer may provide an employee severance for refusal to become vaccinated. In contrast, federally regulated employers need to establish just cause in order to terminate an employee with 1 year or more of continuous employment – the exception is for layoff due to workforce reduction. Federally regulated workplaces generally include industries such as transportation, travel, financial services, logistics, food and drug, energy, mining, oil and gas, and telecommunications.
Practically, what this means is that an employer must be justified in termination on the basis of employee misconduct. This is a rare occurrence in Canadian employment law, and usually results from multiple instances of misconduct by an employee that is met with progressive discipline. For instance, an employee may first receive a verbal warning, followed by a written warning and then suspension or termination of employment. Only serious matters that are fundamentally incompatible with the employment relation can be just cause for termination for a single instance of misconduct.
Refusing to become vaccinated in federally regulated workplaces is very unlikely to be one of these instances. It is widely believed in the employment law community that vaccine refusal will require a severance from employers wishing to terminate an employee in provincially regulated workplaces. This option, however, is not available to employers that are federally regulated. Employees terminated for vaccine refusal may file a complaint to the Canada Industrial Relations Board (CIRB) and remedies may include reinstatement of employment and payment for lost wages. To be clear, a severance offer cannot disqualify an employee from pursuing adjudication for unjust termination with the CIRB.
There will be exceptions to this, however. For jobs in federally regulated workplaces that require a large degree of interaction with customers or co-workers, that cannot be rearranged in such a way to adequately physically distance, a case maybe made for termination. Further, if vaccination or lack thereof is incompatible with continued employment, termination may also be justified in such an instance. An example may be for long-haul truck drivers requiring vaccination to cross the border, thus rendering an unvaccinated driver incapable of performing his/her job. These are rare instances, and employees are advised to seek consultation if faced with termination of employment on the basis of vaccine refusal.
To better understand vaccine-related issues during these unprecedented times, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.