Earlier this year, thousands of employees were terminated from their employment for failing to comply with employer-imposed vaccine mandates. The Globe and Mail published an article quoting a number of veteran employment lawyers reporting that they were run off their feet issuing wrongful dismissal claims on behalf of unvaccinated employees. At the same time, labour arbitrators issued decisions in a number of cases challenging vaccine policies with most decisions upholding vaccine mandates. These decisions were rendered just as Omicron cases were surging and hospital admissions rose. But, as with all things related to COVID, change appears to be the only constant.
Now, as spring is upon us and COVID related restrictions lift, the wrongful dismissal cases in the pipeline are proceeding in a very different factual context than just a few months ago. The COVID related labour and employment law cases serve as a reminder that we must not underestimate how the facts often influence the law. Unemployment rates are now lower than pre-pandemic levels in Ontario with several industries reporting labour shortages. Just last week, Deloitte dropped its vaccine requirements for employees raising questions about whether other employers will follow suit. And, as of March 21, an employee may engage in indoor group activities without capacity limits in close proximity with large numbers of people, including sporting events, dining and concerts without a mask or vaccine. How will a court view termination cases, particularly cause terminations, within this context?
We query whether employers should consider asking employees terminated in December and January for non-compliance with vaccine mandates to return to work, at least during their notice periods, to mitigate damage claims. In the absence of hostile, embarrassing or humiliating circumstances, this may be the new trend.
Karimjee Law continues to monitor the evolving COVID case law. If you’re an employer looking to mitigate your liability or an employee called back to work, we would be happy to help. Contact us here for a consultation.