Lluc Cerda on concerns for government vaccine policy

While more private companies and corporations have recently decided to implement their own vaccine policy, many legal experts are wary of the repercussions for employers without government legislation. What will this mean for employees who face consequences for their vaccination status?

Lluc Cerda, a Toronto employment lawyer and Associate at Samfiru Tumarkin LLP comments on the ongoing concerns with the Toronto Star’s Rosa Saba.

What are the challenges facing employers imposing a vaccine policy?

“The main legal implications of a vaccine policy depend on a few things. For example, public sector employees can bring charter challenges,” Cerda says, ” whereas in the private sector there’s a risk of human rights lawsuits.”

Cerda states that there are other alternatives for employers to keep the workplace safe, other than mandatory vaccines. “Most workplaces will have allowances within their policies to ensure that people who can’t get the vaccine will not have their human rights violated. This could include mandatory masking, or rapid tests at the office, or even education,” Cerda states.

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What circumstances would allow employee’s rights to be trumped by their employer?

“These circumstances can include occupational requirements, such as in health care settings,” Cerda explains. “If the provincial government introduced some kind of vaccine mandate, this would help private and public sector employers immensely, In that case, most employers would be in the clear as long as they had exemptions, which should also be set by the government.”

Are employees being terminated based on their vaccination status?

Cerda explains that many employers have decided to terminate or penalize employees based on their vaccinations already.

“A termination with cause — in other words, a termination with no severance on the basis of someone’s vaccination status — likely won’t fly in the courts,” Cerda says. “But a termination without cause, which would include severance, will still be difficult.”