Trevor R. Thomas
A growing number of employees are facing the possibility of being laid off as they refuse to comply with employers’ mandatory vaccination policies. In this blog post, we will review the law relating to layoffs, specifically as it applies to COVID-19.
Unionized employees have specific rights regarding layoff, which are set out in their Collective Agreement. For more information, please refer to your Collective Agreement or contact your union representative. Unionized employees that are laid off may have recourse through a grievance action.
For non-unionized workers, an employer is permitted to temporarily lay off an employee only in limited situations:
1. If it is normal and expected in the industry (e.g. in the logging industry where work cannot be performed during “break-up”); or
2. If the employment agreement explicitly permits the employee to be laid off; or
3. If the employee agrees to the layoff.
If a layoff falls within one of the above categories, it must be temporary – i.e., the employee cannot be laid off for more than 13 weeks in any given 20-week period. If the layoff continues beyond 13 weeks, it will likely be considered a termination of employment, which entitles the employee to severance pay.
As more employers implement mandatory COVID-19 vaccination policies, there is a risk that employees will refuse to comply with the policy, for a number of reasons. When faced with this situation, layoff is one option the employer has to buy some time in order to determine how to best manage the situation. While it is less harsh than termination, it still leaves the employee is a precarious situation.
Managing the workplace during COVID-19 continues to be complicated; it touches on privacy rights, health and safety, and personal freedoms.
If you have questions about workplace law, especially if it involves COVID-19, please reach out to us.