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Howard Levitt: Yes, Employers Can Still Impose Vaccine Restrictions After Provincial Mandates Have Lifted

posted 2 years ago

With the ending of vaccine mandates in various provinces, the question asked most often of me by my clients (and in media interviews) this week is, can employers still impose vaccine restrictions?

The answer is simple: yes.

Just as a restaurant can exclude customers who insist on coming in barefoot or disheveled, businesses can select whatever customers they wish. The only limitation is that they cannot discriminate against a customer on human rights grounds, i.e. race, creed, sexual orientation, etc.

That leaves only a narrow aperture for complaint. Those very few Canadians who have genuine medical or religious exemptions from being vaccinated have to be accommodated, but, just like an employer, a restaurant or retail store need not accept the person’s word for it but can insist upon proof, whether it be a note from a doctor or pastor.

Beyond those two narrow grounds, a commercial establishment is free to permit only those whom they wish to enter their establishment. If, for example, they wish to advertise that only the vaccinated are permitted entrance, they are free to do so.

I have had many employee counsel write to me this week suggesting that my employer clients might like to settle their lawsuits since vaccine mandates are no longer required. My answer has been simple. Nothing has changed. The fact that the government no longer requires some employers to require compulsory vaccinations does not mean that employers cannot still do so and certainly does not mean that they did not have the right to insist upon it when the virus was raging through the population and vaccination was the universally prescribed cure to end the pandemic.

Government requirements similarly have little impact on whether the employer can argue it has good business reasons for enacting a compulsory vaccination policy.

Here’s a look at some other questions I have received recently:

Q: I was fired for refusing to vaccinate and now the company is ending its vaccine mandate. Can I get my job back?

A: In the non-union world, you can never be reinstated in employment but only sue for damages for wrongful dismissal.

The court, in deciding whether you were wrongfully dismissed will look at the circumstances when you were terminated not the circumstances today.

Q: I am on a child-care leave and have been offered another job. Can I wait until I have completed probation and have benefits with my new employer before giving notice?

A: You are flirting with fraud. You are on a leave premised on your being unable to work for childcare reasons. Working elsewhere is antithetical to the reason for your leave and cause for discharge by your current employer. If they are paying you benefits while you are working elsewhere, the fraud is more serious as you are making a financial gain based upon your misrepresentation. Apart from that, if the employer ever learns of this perfidy, they not only may sue you, but there could be criminal implications and, in any event, you will have destroyed the prospect of any reference going forward.

Q: I am experiencing some health issues and wish some days off. How can I go about it?

A: It is one thing to ask for a day off episodically based on your illness on a particular day. But if you need more regular time off, the only mechanism to protect yourself is to obtain a doctor’s note delineating the time that you require. Without that medical evidence, you would be at risk of being terminated for absenteeism.

Q: Do I still get Employment Insurance if I sue for wrongful dismissal?

A:  You do, but you may have to pay the portion of EI back representing the period for which you ultimately are awarded severance.

Q: How do I stop employees from leaving and poaching my customers?

A: The best device is a non-solicitation clause. The problem is that non-solicitation clauses are of little use as it will be difficult to prove that the former employee approached the customer. An obliging customer who left you will likely assert that it was they who approached your former employee.

But if the employee is a fiduciary or a senior trusted executive, they cannot solicit your former customers or usurp any business opportunities and you can sue them for doing so. In my experience, such a lawsuit generally cools their ardor and makes them far more circumspect going forward.

Q: Many parents working remotely right now are being asked back into the office, but are not able to find aftercare or childcare because the programs have been shut down or are accepting fewer children. Can these parents ask for a return-to-work extension?

A: Employers must accommodate their employees’ childcare needs. An employer can require you to find a school or childcare option and if you can’t, they can try to find you one themselves, which, if reasonable, you must accept. But if neither of you can and there is no one else available to deal with your children, they must allow you to continue your leave. Whether they have to let you “work” from home while caring for your children is a function of whether you can prove you are providing value for your salary. If you are preoccupied with child care rather than working, the employer is entitled to offer only an unpaid leave of absence.

BY HOWARD LEVITT

Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-yes-employers-can-still-impose-vaccine-restrictions-even-after-provincial-mandates-have-lifted

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