Should I invite an unvaccinated employee back to work after they were terminated?

THE QUESTION

In December, I terminated a long-term employee for just cause for not complying with our company’s vaccine mandate. The employee is seeking a severance package. Given the current easing of pandemic restrictions and since other companies are dropping their vaccine mandates, would it make sense to invite the employee to return to work?

THE FIRST ANSWER

Kumail Karimjee, principal, Karimjee Law, Toronto

Employers have a legal obligation to take every reasonable precaution to protect the health and safety of workers. Before considering the recall of an unvaccinated employee by making an exception to your policy, it is important to consider the workplace context and specifically risk to the health and safety of others. You should also consider whether alternative measures such as testing and masking may be effective. Beyond safety considerations, consider the impact on the morale of other employees who have complied with your policy.

The benefit to an employer is that it may reduce potential severance obligations. The law remains uncertain on whether termination for cause is justified for failure to comply with a vaccine policy. It will be for courts and arbitrators to determine, based on a consideration of a broad set of contextual factors, whether there is just cause in any given case. If a court determines that just cause is not made out, severance obligations will be owed to the departed employee. For a long-term employee, severance entitlements may be significant. An offer of return to work is a way to potentially limit liability. As an employer, you can argue that an employee should return to work to mitigate or reduce their damages by working through a notice period. In a narrow set of cases, a failure to return to work after an employer offer has been found to be a failure to mitigate and resulted in a reduction of damages. However, an employee will not be expected to return to an atmosphere of hostility, embarrassment or humiliation.

THE SECOND ANSWER

Veronica Ukrainetz, principal, Ukrainetz Workplace Law Group, Vernon, B.C.

An employee’s refusal to be vaccinated may not provide “just cause” to terminate (which relieves the employer of the obligation to pay severance). Just cause requires a finding of misconduct on the employee’s part. There is the view that exercising the right to bodily integrity, which includes the right not to be vaccinated, does not provide “cause” to terminate. Conversely, some cases have found that an employee’s failure to follow a mandatory vaccination policy justifies termination for cause. Because the law in this area is unsettled and all decisions are subject to the particular facts, the employer does have exposure to a claim for severance.

It may appear contradictory to invite an employee back whom the employer has terminated “for cause”. However, if the employer can confidently explain that the reasons for having a mandatory vaccination policy in place in December no longer apply now, this strategy would reduce the employer’s severance exposure. The employer could also consider offering the employee a payment equivalent to the wages that would have been earned between termination and the offer of rehire, keeping the employee whole and effectively pulling the rug out from underneath the employee’s claim.

It is important to be mindful that human resources policies are put in place for a variety of reasons, typically with the overarching goal of ensuring a safe, productive and accountable work environment. Depending how COVID-19 progresses, it may be premature, and as well damaging to a provaccination workplace culture, to lift a vaccine mandate and reinstate unvaccinated employees. It may be just as strategically effective to remind the employee of the availability of work with other employers who do not have mandatory vaccination policies.

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