It may be difficult for employers to uphold vaccine mandates: lawyer

With workplaces mandating vaccines, employees with medical exemptions wonder what will happen to them. One lawyer says that regardless of vaccination status, employees should be paid severance if they lose their job over vaccine requirements.

As Canada tries to return to a pre-pandemic normal, workplaces are grappling with enforcing vaccine mandates for their employees, and some employees are learning in real-time the legality of such mandates.

"An employer can't force you to put a needle in your arm, but they can make your continued employment conditional on having received a vaccine. And for those employees who choose not to vaccinate, they can be fired," employment lawyer Daniel Lublin told CTV's Your Morning on Thursday.

Regardless of vaccination status or why they opted out of getting vaccinated, those employees should be paid severance, he added.

How vaccine mandates are being handled differs across businesses and industries. Some employers, such as Air Canada and some Ontario hospitals, are opting to terminate or put unvaccinated employees on unpaid leave if they don’t have a medical exemption. Other companies, such as Canada’s major banks, are allowing unvaccinated workers to return to the workplace, but they will have to complete regular COVID-19 testing.

Proving medical exemption for the vaccine has become more difficult, Lublin said. Where a doctor's note used to suffice, he said, he's seeing more employers question the authenticity of doctor's notes they are provided.

"That's not how the human rights law should be interpreted," he said.

For employees who provide a medical exemption and are still dismissed, it could be considered discrimination.

"That would be a discriminatory termination, an individual can sue for both wrongful dismissal and human rights damages," Lublin said. "And in human rights courts, in addition to receiving wage loss recovery, you can potentially sue for reinstatement with back pay."

Much of this, though, still needs to be tested in courts. Lublin said that some of these cases are still working their way through the legal system and could be highly dependent on which industry is involved.

"It's going to be very industry-specific. In certain industries, such as health care, there's probably a far greater case to be made for mandatory vaccinations," he said. "But in other industries where you can have adequate social distancing and employees can work remotely or in a hybrid basis, it may be more difficult for employers to uphold hardcore mandatory vaccination policies."