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Employees Who Choose to Refuse: New Consequences for the Unvaccinated

Guest
October 25, 2021

Making news headlines, Canada’s Employment Minister recently advised that employees who have been terminated for failing to comply with their employer’s COVID-19 vaccine policy will likely be ineligible for Employment Insurance.

Although the details of that position are not fully confirmed at this time, and EI applications should still be reviewed and considered on a case-by-case basis, that is consistent with our assessment that many employees who choose not be vaccinated for personal reasons, and have their employment terminated or are placed on an unpaid leave as a result, will not qualify for EI.

The reality is that there are very few options for employees who choose not to get vaccinated based on personal belief, and lose their job as a result.

Unionized vs. Non-Unionized

In the unionized context, many unions have supported employer vaccine mandates, meaning they are unlikely to file a grievance on behalf of employees who refuse to comply with that mandate and face the communicated consequences. As a unionized employee, you are not able to directly sue the employer for issues covered by your collective agreement. Those issues instead follow a specified grievance process.

In non-unionized contexts, employees may be able to file a wrongful dismissal claim in relation to severance. However, the court cannot reinstate your employment, and in many cases employers will have given considerable notice of vaccination being a job requirement, reducing the applicable notice period. Further, your employer may be able to assert cause for your dismissal in some cases.

Human Rights

While human rights protection remains in place, personal choice is not something protected under human rights legislation; in the absence of a medical reason for remaining unvaccinated, it is unlikely you will have a legitimate human rights complaint (see our previous piece on human rights here).

In addition to losing a current job, we anticipate that unvaccinated individuals are also likely to have more difficulty obtaining replacement work. We are seeing many employers requiring vaccination as a condition of employment, which is legally permitted, and may significantly reduce the number of jobs that are open to unvaccinated workers.

Ultimately, in the same way an employer can ban peanut butter, require a driver to maintain a certain class of license, or make employees wear steel-toed boots at a job site, being vaccinated against COVID-19 is becoming a legitimate job requirement in many workplaces.

Ultimately, the choice to vaccinate or not remains with the individual, but the consequences of that choice on employment may be high.

 

We want to help bring clarity to these issues – Contact us now to discuss!