Legal experts say vaccination status should not affect your employment

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The pandemic has led to massive lay-offs, economic instability and workers fearful for their financial future. Changes in laws, mandates and workplace policies can add to the confusion and anxiety many are facing on the job. With mandatory vaccine policies being rolled out in workplaces across the country, lawyers are being inundated with questions about workers’ rights.

Many employees are seeking clarity regarding human rights and medical exemptions, says Bram A. Lecker, employment lawyer and founder of Toronto-based law firm, Lecker & Associates. He cautions that it would be very difficult to prove a religious exemption, adding the Human Rights Tribunal of Ontario’s policies do not support those exemptions at this time. "However, medical exemptions could be related to allergies, negative reactions to a COVID-19 vaccine or myocarditis and would need to be accommodated by the employer without termination," said Lecker.

If a worker has been given a timeline to get vaccinated and still has not met that requirement, unvaccinated employees should still do their best to comply with their employer’s vaccine policy, says associate lawyer, Kimberley Sebag. There are other steps that can be taken to demonstrate a willingness to fulfill work obligations.

“I’ve seen some vaccination policies that say if you’re not going to be vaccinated, take an online education course on vaccinations, submit a certificate showing that you’ve done so, submit to testing, fill out a form advising us that you won’t be vaccinated”.

In these situations, if these steps have been completed and a staff member is still not vaccinated by the predetermined date, there are opportunities to suggest working from home or changing work duties as a way to avoid being terminated. By this time, there has been clear communication of their vaccination status and it’s up to the employer to decide how to proceed. However, if a worker walks off the job to avoid being fired, they have abandoned their duties and lose the entitlement to severance pay.

FILE - This May 13, 2021, file photo shows syringes filled with the Johnson & Johnson vaccine at a mobile vaccination site in Miami. (AP Photo/Wilfredo Lee, File)

According to Lecker, there is a common misconception amongst employers that a worker can be let go for being unvaccinated as a form of willful misconduct. However, he said this is not how the courts will address the matter.

“Just cause is the capital punishment of employment law. It’s the worst thing and the onus is always on the employer to prove it. And when you have somebody who is employed with the company for twenty-one years, a judge eventually seeing this case will turn themselves into a virtual pretzel to make sure that person’s employment is maintained or if they were terminated - that they are going to be compensated for the loss of their position.”

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