Many employers have introduced mandatory COVID vaccine policies that will take effect this month.
I am being asked two main questions in relation to the implementation of this kind of policy.
The first issue is whether to grant exemptions to the policy for religious or medical reasons. An employer has an obligation to consider the request but can request additional information in connection with the request. The onus is on the employee to show the reason for not getting vaccinated is a sincerely, freely and deeply held belief that is integrally linked to a person’s identity, self-definition and fulfilment.
Some of the exemption requests I have reviewed are suspicious. For example, I reviewed one exemption request based on one religion and when the request was rejected the employee submitted another exemption request based on a different religion. Another employee submitted a request for a medical exemption and when it was rejected this employee submitted a request for a religious exemption. I am not suggesting an employee may not qualify for a medical and a religious exemption. I am suggesting, however, that the circumstances surrounding a request can suggest it is not a bona fide request and the employer can ask questions. This is part of the procedural duty to accommodate.
The second issue is what are the consequences for not complying with the policy by the implementation date? Recently some employers have terminated employees for failing to comply with the policy and others have placed employees on unpaid leave or an unpaid suspension.
If employers terminate workers for failing to comply with a mandatory COVID Vaccination Policy then the question will become whether this is just cause for termination. I expect many of these terminated employees will commence wrongful dismissal actions.
Another option in relation to non-compliance is permitting employees to provide regular negative COVID tests as an alternative to mandatory vaccination. This may be an option that is being considered for healthcare workers and childcare workers because it is currently difficult to find replacement workers. Terminating all unvaccinated employees can lead to the healthcare system breaking or child care centers closing. I think the Quebec government delayed the implementation of its mandatory COVID policy for this reason. If all employers in these industries hold fast so that employees cannot get a job without being vaccinated and the federal government refuses to provide these employees with any financial support such as employment insurance benefits then there will be enormous pressure placed on these employees to get vaccinated. If, however, some employers allow employees to provide negative COVID tests as an alternative to mandatory vaccination, then unvaccinated employees in a tight job market could very well migrate to these employers. I see a high stakes game of chicken currently playing out in these industries. It will be interesting to see who blinks first.
Update: On November 3rd the Quebec blinked and changed its policy from mandatory vaccination to three times a week COVID testing because 3% of healthcare workers were refusing to get vaccinated and the government concluded the healthcare system could not survive the loss of these employees. On November 3rd the Ontario government announced it was not mandating province-wide mandatory vaccination and instead was leaving it up to individual hospitals to decide whether or not to implement a mandatory vaccination policy.
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