Emerging wrongful dismissal cases and rights for unvaccinated workers

Interview Summary

As cases of COVID-19 surge across the country due to the Omnicorn variant, more employers have considered implementing vaccine policies. Employees who have chosen not to be vaccinated are continuing to express concerns over their rights and potential unemployment. What are they permitted to refuse and what are they owed upon termination?

Jon Pinkus, a Toronto employment lawyer and partner at Samfiru Tumarkin LLP, spoke with CTV News to discuss the unvaccinated employee rights and possible wrongful dismissal suits.

Interview Notes

Are there more wrongful dismissal suits being brought forward by terminated unvaccinated employees?

There are many wrongful dismissal suits being brought forward by terminated unvaccinated employees however, they are not all similar and have different elements. In most cases, the employees who have been terminated were not given the option to undergo regular COVID-19 testing as an alternative to vaccination.

What is the likelihood that wrongful dismissal regarding unvaccinated employees will be successful?

While there have been many cases filed, as of yet there have been no cases that have led to court. As a result, it is impossible to determine the likelihood of success or failure.

Legally, can employees who refused to be vaccinated be terminated for cause by their employers?

Terminations for cause due to vaccination status will be incredibly difficult for employers to implement. Vaccinations are considered to be a new term of employment which employees would not have had to consent to upon the start of their employment. Terminations for cause occur largely when there is no alternative to disciplining extreme misconduct exhibited by an employee, such as theft or assault. Employers who terminate employees for cause have to be able to prove there was escalated disciplinary action and build a case against the employee.

Are there more wrongful dismissal suits likely to occur for employers in the future?

There are likely many more wrongful dismissals employers will have to face in the coming months. Employers have largely ignored medical and religious exemptions and have imposed terminations as a blanket regulation, despite varying degrees of risk within their workplaces. Employees who work remotely or have the option to do so seem to be facing the same vaccine policies and terminations as those who work in high-risk settings.