Employment Law Show 640 Toronto – S9 E86

Episode Summary

Vaccine mandates for employees, vaccinations in the workplace, and more on Season 9 Episode 86 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Employment Lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto, the GTA, Hamilton, London, and across Ontario on the Employment Law Show. Lior shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, and more.

Listen to the Episode

Episode Notes

I fly a lot for my work, but I can’t fly commercially if I don’t get vaccinated. What are my rights?

Because it isn’t your employer imposing the rule about the vaccine, your employer now has an employer who cannot do his job. This actually allows the employer to end the employment relationship with you without providing severance. You have to make a choice as to whether get the vaccine and continue working or forgo the vaccine and lose your job. Because without the vaccine you can’t do your job (fly on commercial airlines) we call that a frustration of contract, and you can lose your job.

My employer says if I don’t get vaccinated I will lose my job ‘for cause’ and without severance. Is that true?

Since your employer issues a vaccine requirement and you don’t want to comply, your employer cannot fire you ‘for cause’. If you lose your job because you don’t want to get vaccinated, you would still be owed your full severance pay, which could be up to 24 months’ pay. If your employer wants to put you on an unpaid leave, you could claim constructive dismissal, and you would still get your severance pay. If this has happened to you, contact us.

LEARN MORE
Can My Employer Mandate the COVID-19 Vaccine?

I am an electrician and my employer is going to mandate the vaccine. What can I do?

If you are not part of a union, your employer can’t legally let you go for not getting the vaccine. That being said, you cannot prevent your employer from letting you go, but it would not be for cause. You would still be owed severance. If you are part of a union, the only person who can help you is your union. As an employment lawyer, I cannot advise you.

• SEE MORE: Severance packages for electricians

I’m an employer with an employee who is 62 years old, and has been with the company for five years. I have no choice but to terminate them, what should I pay for severance?

If you terminate the employee without cause, you would probably owe this employee six month’s pay. There is another option, and that is to give the employee progressive warnings based on the detrimental behaviour. After the third warning, you could be able to let the employee go ‘for cause’, without having to pay anything. You may already have enough warnings in place to let the employee go for cause, in which case you should connect with us after the show and we can advise you on the situation.

LEARN MORE
Labour & Employment Law: For Employers

I have had COVID-19 and I have immunity. Can I ask the employer to sign something saying they will assume liability for any adverse reactions to the vaccine?

Your employer is not going to sign that. The real issue is, will your employer be satisfied with a doctor’s note that says you’ve had COVID-19 and you’re immune. They may accept that, or they may not and say that they still want you to get the vaccine. If your employer doesn’t accept the note, they may let you go if you don’t get the vaccine. You can’t stop your employer from letting you go in that case, but you will still be owed compensation in the form of severance pay.

The Occupational Health and Safety Act requires employers to take all reasonable precautions for the safety of their workers. So can they mandate the vaccine?

Employers do have an obligation to take measures to ensure the safety of the workplace. But if you think about that, an employer can always do more. Even if there’s no pandemic, an employer can say, well we want to present prevent against the flu, so employees have to wear PPE at all times. My point is there’s always something more that the employer can do.

That’s why we have to go and look at what the government says. If the government says to keep the workplace safe, you have to have vaccines that the employer has no choice but to do that. If the government is saying no, your workplace is considered safe as long as you have masking and social distancing, then that is all that is required. For the employer to say no, we decide we have to do more – that’s overreaching. And if they decide to fire someone, there’s going to be legal consequences.

LEARN MORE
Lior Samfiru on enforcing vaccines in the workplace

My company is proposing to put mandatory testing in place every day. Is that legal?

The only one that can tell you an answer whether that’s legal for your workplace is your union. Because if they say it’s legal then they won’t do anything about it. That’s what happens when someone is part of a union. Speak to your union.

I stepped up to a supervisor role and signed a contract, and a few weeks later my contract was rescinded. Can they do that?

The only one that can tell you whether that’s permissible if that would be a breach of the collective agreement if your employer did something wrong, and what the consequences are, is your union. If this had taken you outside of the union, then the law kind of jumps in and the law says, here’s what’s legal and here’s what’s not. But because you’re part of a union, the law says we will defer to the collective agreement. Will defer to the union. Because of that, you have to talk to your union.

I received a letter from her employer stating be vaccinated or be fired. My union said they won’t help me get reinstated. would happen if I were fired?

There would be no severance. The only option that you would have in that situation is to file a complaint against the union with the labor board. It’s called the duty of fair representation complaint. The idea is to have the union support you. But that’s really the only thing that can be done. There is no legal action that can be taken against the employer. I cannot help you get severance. All of that has to come from the union.

I worked for a bank and they say we have to be vaccinated by October 22nd to be in the branch. But clients don’t have to be vaccinated, so how are they keeping us safe?

The real question is not whether what your employer is doing makes sense or it’s not even whether it’s legal or not. The question is, what can we do about it? And the reality is this if your employer says to you, if you don’t get vaccinated by October 22nd or you’re gone, they will absolutely let you go. You can then pursue compensation. Severance, potentially other damages as well, because it’s not legal necessarily.

But ultimately, the decision that you have to make now is you get vaccinated and keep your job or do not get vaccinated and then risk losing your job because there’s no way to physically prevent your employer from letting you go if that’s what they choose to do.

I was let go at the end of 2019, and I hired an employment lawyer but I haven’t heard back from him. What can I do?

Your matter should have been resolved a long time ago. Don’t continue down this path with your current lawyer. It’s a waste of time. You need to find a new employment lawyer, and it doesn’t have to be me, I can give you the name of other lawyers, but you cannot continue down this path. If you want to connect, get in touch with my team off air and we will help you resolve the issue swiftly.

If I get the ultimatum to get vaccinated to keep my job and my union will not support me, is making a claim for fair representation my only option?

Yes, that Labor Board process is the only and only available option that you have. There is no other, there are exceptions. It has to be that process. There’s really nothing else. That is unfortunately what happens when someone is unionized.

My employer is asking me to get vaccinated, but I want to refuse for religious reasons. What should I do?

If you’re looking for a religious exemption what you would need to do is get something from the religious leader in your faith, a rabbi, a minister, a priest, whoever the right person is in your religion to say that, that your belief is accords with your faith and that it’s a legitimate and recognized part of the faith that you can’t get the vaccine. If you can get a letter like that, it’s going to be very difficult for your employer to let you go. You can’t physically stop them from letting you go. But if they let you go, you would definitely have a very strong human rights complaint. In that case you’d be owed damages and potentially even have the case for reinstatement.

LEARN MORE
Can My Employer Mandate the COVID-19 Vaccine?