Scores of unvaccinated workers are filing wrongful dismissal claims against employers, lawyers say

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Employers across the country have begun firing employees who are not fully vaccinated against COVID-19, according to lawyers who say they are inundated with vaccine-related cases and claims of wrongful dismissal.

The deluge of cases sets up a crucial legal test of vaccine mandates imposed by employers, one that pits the individual rights of workers against employers’ health and safety concerns amid a pandemic that has dragged on for almost two years.

Leading labour and employment lawyers told The Globe and Mail that cases involving the termination of unvaccinated employees hinge on a number of factors, including whether employees are required to come into work, details of an employee’s initial hiring contract and whether the employee is unvaccinated on grounds other than medical or religious ones.

“I have never had, in my 20-year career, so many calls, e-mails, queries about a single issue as I have about employees being let go or put on indefinite leave because of a company vaccine mandate,” said Lior Samfiru, co-managing partner at the Toronto-based labour and employment law firm Samfiru Tumarkin LLP.

Shaun Parker, a Calgary-based partner at the Bay Street law firm Osler, Hoskin & Harcourt LLP, told The Globe that he too has started to see a wave of firings of employees who refuse to get vaccinated. “We’re seeing this mostly in the private sector. These employees are now engaging counsel and trying to pursue severance pay.”

Mr. Samfiru, who represents employers and employees, told The Globe his firm is currently handling hundreds of cases involving employees being fired for their vaccine status. In almost all of them, employees were terminated with cause, meaning they were denied severance. “There have been thousands of people that have been put on unpaid leave or flat-out terminated without compensation. It’s a huge issue and I think a lot of employers do not understand the legalities of it,” he added.

Whether or not an employee can be fired for not adhering to an employer’s policy on vaccines is a complex issue, lawyers say, complicated by the fact that there has been no definitive court decision in Canada on how vaccine mandates can be enforced in workplaces.

“The question we are all trying to answer is, can an employer, in a non-unionized setting terminate an employee with cause for not getting vaccinated? In my view, they cannot, except in very specific circumstances,” said Lai-King Hum, founder of Hum Law, a boutique law firm in Toronto that deals exclusively with labour and employment issues.

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Many employers in Canada began imposing vaccine mandates last fall, encouraged by public-health guidelines about the efficacy of the COVID-19 vaccines against infections and severe disease. As deadlines for being fully vaccinated passed (for most employers, the requirement means getting two shots of vaccine), employee terminations started. Approximately 20 per cent of Canadians above the age of 5 are not fully vaccinated.

Last week, the City of Toronto fired 461 employees for not complying with its vaccine mandates. The Toronto Transit Commission also announced this week it would terminate 354 employees who refused to be vaccinated.

The Globe contacted more than 30 employers that had instituted mandatory vaccinations – including Canada’s five largest banks, most major law firms, insurers and accounting firms – to understand how the policies were being applied to employees who chose not to get vaccinated without a reasonable medical or religious exemption. Most employers declined to specify if they had or would terminate unvaccinated employees.

“The complication that employers are starting to realize is if your employment agreement did not state from the very beginning that vaccines are compulsory, then you would likely have to pay an employee if you want to terminate them. That cost adds up,” Ms. Hum said.

For non-unionized employees, the question for the courts is whether unvaccinated employees should be awarded damages in the form of pay. In a union setting, workers could potentially be reinstated into their jobs if an arbitrator rules in their favour.

Some employers told The Globe they intended to terminate employees who did not get vaccinated. The law firm Gowlings WLG LLP said that non-compliance with its vaccine mandate without an approved exemption would result in “sanctions, up to and including termination of employment.”

Insurer Canada Life, which employs more than 10,000 workers, said in a statement that employees who fail to “attest to their vaccination status or undergo rapid testing without a valid and documented human rights exemption” would be disciplined, “up to and including termination.” Accounting firm KPMG Canada said that employees who refuse to get vaccinated for reasons other than medical or religious could be terminated for “just cause,” implying that they could receive no severance. Those working exclusively from home however, do not require proof of vaccination.

Andrew Monkhouse, an employment lawyer in Toronto who is handling numerous cases related to vaccine firings, said he believes unvaccinated employees terminated with cause have an especially good argument if the employee can prove their unvaccinated status did not jeopardize the health and safety of a workplace. “I think you’d have exceptionally strong grounds if you work from home,” Mr. Monkhouse said.

In Maple Ridge, B.C., a woman who worked from home was terminated without severance from her job as an accountant with Ducks Unlimited Canada – a non-profit that focuses on the conservation of wetlands – for not getting vaccinated “out of personal choice,” court documents show. The woman, Andrea Marlene Horvath, is being represented by Mr. Samfiru’s firm, and filed a lawsuit last week seeking damages worth up to 13 months of her six-figure salary.

“We always have to ask: What is the purpose of the policy? An employer will say, it is to keep the workplace safe. So how does the vaccine status of an employee who works from home impact that in any way?” Mr. Samfiru said.

Mr. Monkhouse points out that the vaccine mandate situation at workplaces is bound to become thornier as more and more vaccinated Canadian employees get infected with Omicron, the latest major COVID-19 variant. Early studies have indicated that Omicron, compared with previous variants, causes a significantly higher number of breakthrough infections among the vaccinated, even though this group tends to get less severely ill than unvaccinated individuals.

“There’s a completely different moral imperative in forcing someone to get a vaccine when the vaccine’s primary benefit is for that person’s own safety, as opposed to the safety of others,” he said.

While there are still no court decisions on the implementation of vaccine mandates in non-unionized workplaces, there are a number legal decisions in Ontario involving unionized employees that offer some insight into how these cases might play out in the courts.

In November, the Power Workers’ Union – the main union for electrical utility employees in Ontario – filed a grievance against the mandatory vaccine policy of the Electrical Safety Authority, a provincial body, alleging the policy represented a significant “over-reaching exercise of management rights,” and violated the privacy of employees.

The arbitrator ruled in the union’s favour, arguing that because vaccine mandates were never part of the collective agreement, there could be no legislated requirement that ESA employees be vaccinated, regardless of the fact that Canada is subsumed in a global pandemic. The arbitrator, in fact, wrote in his decision that vaccinating the population was “necessary in order to secure the fragile health care system and eventually put this pandemic behind us,” but that notion could not override the collective agreement.

On the contrary, an arbitrator ruled against a mandatory vaccine grievance filed by the United Food and Commercial Workers union against the employer, Paragon Security, because it was stated in the UFCW collective agreement, years before the pandemic, that vaccinations and inoculations were necessary for workers.

“It’s more clear cut for unionized employees because you have the collective agreement to rely on,” Ms. Hum said. “But I think eventually there will be a case that goes to court that sets a precedent on this issue.”

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