There are two COVID-19 related employment law issues that we believe will be making major waves in 2021.
The first is that employees may now be facing major negative consequences from certain off-duty conduct that prior to COVID-19 would be none of the employer’s business. The second is whether employers are going to tolerate an employee who refuses to be vaccinated for COVID-19.
There has been a lot of chatter in the media lately about certain employees or public figures who have been caught either outright defying public health orders from the Ontario government or at least have been caught engaging in certain behaviours that may seem arguably inappropriate given their position. For instance, in December 2020 there were a few politicians as well as a Niagara-region hospital CEO who were caught taking holiday vacation overseas while the government was begging people to stay at home and not travel unless for essential reasons. This was previously completely normal behaviour and it would be utterly preposterous for an employer to fire you for taking a vacation.
However, the global pandemic has clearly changed things. The employer has to take into account how previously normal behaviour by an employee (such as holiday travel) will affect the workplace given COVID-19. For instance, the employer has to determine how the employee has exposed the workplace to COVID-19 and how that might affect the employer’s business and operations. The employer may even have concerns about how the employee’s “risky” behaviour will affect the employer’s reputation.
It remains unclear as to how employers should approach this situation. Should the employer discipline the employee in any way? Provide only a verbal warning or perhaps a written sanction to the employee? Fire or terminate the employee immediately? Some well-informed employers may have some sort of workplace policy related to these issues and COVID-19, which may provide some guidance. However, we suspect that many employers do not have such policies given the ever-changing set of circumstances that employers are faced with respect to COVID-19.
Moreover, unfortunately, the law in Ontario does not provide us a lot of guidance either. There are simply not enough COVID-19 related firings that have made its way through the courts to allow for a robust body of case law that lawyers could use to help with these questions.
It also remains unclear as to how an employer should approach an employee who refuses a COVID-19 vaccine. There of course may be legitimate human rights issues (such as a disability) that causes the employee to refuse a COVID-10 vaccination. This situation is easier for the employer as they would try to accommodate the employee unless there was undue hardship. Certain lawyers have suggested that the employer cannot either discipline or fire the employee. They believe that, unless the employment agreement specifically sets out vaccination as a term of contract, the employee cannot be fired or disciplined for refusing a COVID-19 shot.
However, it may not be that simple. The fact is that COVID-19 remains a dangerous public health threat. It is not simply the flu. It has caused a tremendous amount of harm to our healthcare system and has caused a lot of people to die or get very sick and need hospital care. In addition, the fact is that COVID-19 has already caused major changes to the workplace. Under Ontario’s Health and Safety Act, it is up to the employer to ensure that COVID-19 health and safety measures are being met in the workplace. This means that vaccinations will become an increasingly live issue in all workplaces and not only among healthcare professionals where there is an existing body of case law in that regard.
We suspect that many of the above concerns will be flushed out by Ontario’s courts in 2021.