A Sudbury business audience was told Thursday that workers might claim many reasons why they don't need a COVID-19 vaccine or don't need to wear a face mask and that employers are obligated to try to accommodate those claims. But there are limits.
Zachary Courtemanche, a partner with the legal firm Weaver Simmons LLP, was a guest speaker at a Greater Sudbury Chamber of Commerce Zoom conference. He was outlining some of the laws employers should be aware of in terms of COVID-19, vaccines and the workplace. He explained that employers have a duty to accommodate employee claims — but only to the point of undue hardship.
"Undue hardship is a significant hurdle. But a reasonable accommodation does give you some flexibility. Depending on the nature of your work, working from home until COVID-19 is under control, may be an option. Testing or assessments when entering the workplace may be an option. And we talked already about rapid antigen testing. Again, as well, a separate workstation or some other additional safeguards, both to protect that employee and other employees is also likely appropriate in the circumstances," Courtemanche explained.
It was also explained there are limits to what employees can claim as medical exemptions or religious exemptions. Both the Ontario College of Physicians and Surgeons, and the Ontario Human Rights Commission have spoken out on the limited and rare medical exemptions and non-existant exemptions for religious beliefs.
Courtemanche said the big question that lawyers hear often is what to do when an employee just refuses to get a vaccine and can that employee be terminated.
"I will suggest to you that probably that answer is ‘no’, unless you're prepared to pay severance for it. It is very unlikely that refusal to get a vaccine is going to result in a termination for cause or a just cause," said Courtemanche.
He quickly added that if a decision is made to terminate an employee, the employer will likely be responsible for severance payment and any payment requirement under a collective bargaining agreement or provincial employment legislation," he said.
He added that an employee who feels they have been wrongfully terminated might choose to fight back.
"Be also mindful that a wrongful dismissal claim against you may attract more than that in the courts in the common law. And if you have a particularly long-service employee who is refusing to cooperate, you may want to really think about that because that could be a significant level of exposure," he added.
Courtemanche was asked what to do about a non-vaccinated employee who is required to work outside the shop in other venues — such as a contract employee — where the employee exemption is not recognized.
"That's a good question," said the lawyer who said you cannot control what other workplaces say or do.
"So obviously, they aren't going to be admitted in so they're not going to be able to do that work. If you have other work for them to do and you can repurpose them, that's great. If you don't, it's a situation where you don't have enough work for your employee.
“That might mean that they have less hours. That might mean that they are on some kind of temporary layoff. Be careful with temporary layoffs, they are permissible under the (Employment Standards) Act, but they do sometimes attract constructive dismissal allegations. My suggestion is if you can find work for them do so. But that's one of those occasions where it's not really your fault, right?"
Courtemanche also said that employers have an obligation to keep all other employees safe and so it might mean isolating the unvaccinated person or requiring them to take regular COVID-19 testing, or wear masks more often or for longer periods than workers who are vaccinated.
He added that employers are free to offer incentives to employees who do get vaccinated. On the flip side of that he said employers also have to ensure that non-vaccinated employees are not in a position where they are centred-out or ridiculed by other workers.