Editor’s note: A previous version of this story incorrectly included a response meant for a different question. The Globe regrets the error.
I was recently fired by my employer after I refused to comply with their COVID-19 vaccination mandate. I was told that, despite being a 16-year employee in good standing, they couldn’t make an exception for me. At the termination meeting, they told me that I wasn’t entitled to a severance package because I failed to observe the new policy. Am I owed any severance?
THE FIRST ANSWER
Jonathan Pinkus, partner and employment lawyer at Samfiru Tumarkin LLP, Toronto
Yes, you will almost certainly be owed severance.
Unless your employer is subject to a law requiring vaccination in your particular workplace, an employer cannot refuse to pay you severance because you refused to be fully vaccinated. For the overwhelming majority of employees, there is no such requirement on their workplaces. The most notable exception to this would be workers in health care facilities in British Columbia, mandated by the Provincial Health Officer, Dr. Bonnie Henry. However, this is the exception, not the rule. Even Ontario’s vaccine certificate system does not apply to employees in the industries that it covers.
To refuse to pay you severance, your employer will have to establish “just cause,” an extreme option reserved only for the most serious forms of misconduct on the part of an employee. Here, the employer cannot establish “just cause” if it was not a legal requirement that you become vaccinated. Every employee must follow the law, including health and safety rules. But it is not up to employers to decide what the legal safety requirements are in the workplace. In other words, when it comes to vaccines, only the government can effectively make it a requirement of your job.
Assuming that vaccination was not mandated by the government for your workplace, you have been wrongfully dismissed. Given your tenure and assuming that you were a non-unionized employee, you would likely be entitled to a significant severance package. It could be upward of 16 months’ pay and benefits, depending on your age, position, and other factors. Your employer may also be liable for human rights damages in the circumstances. It is advisable to speak with an employment lawyer who can help you obtain these entitlements.
THE SECOND ANSWER
Melissa Rico, partner, Carbert Waite LLP, Calgary, A.B.
This issue is arising more often as employers take steps to keep their workplaces and employees safe during the pandemic. Assuming your employer’s COVID-19 vaccination mandate was included in a policy that you were aware of and had time to comply with, the quick answer is yes, your employment could be terminated without you being entitled to a severance package.
That said, careful consideration should be given to the policy itself, to determine whether the mandatory aspect is necessary and reasonable in the circumstances. The key question is whether the mandatory COVID-19 vaccination policy is integral to ensuring a safe workplace. The nature of the employer’s business should be examined. Some factors to consider are whether there are vulnerable groups involved (such as providing services to the elderly), or an inability to accommodate flexible work arrangements (whether being in the workplace is necessary to complete your duties). If your employer’s COVID-19 vaccination mandate is not reasonable in the circumstances, then you may have an argument that you are entitled to a severance package.
The last consideration is whether your refusal to comply with the COVID-19 vaccination mandate is due to a protected ground of discrimination under the applicable human rights legislation. The most common examples would be due to medical reasons or religious beliefs. If this is the case, your employer has a duty to accommodate you. Additionally, you could consider bringing a human rights complaint in your jurisdiction if your employer fails in its duty to accommodate.
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