There are two COVID-19 related employment law issues that we believe will be making major waves in 2021.<\/p>\n
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\u2019s business.\u00a0 The second is whether employers are going to tolerate an employee who refuses to be vaccinated for COVID-19.<\/p>\n
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.\u00a0 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.\u00a0 This was previously completely normal behaviour and it would be utterly preposterous for an employer to fire you for taking a vacation.<\/p>\n
However, the global pandemic has clearly changed things.\u00a0 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.\u00a0 For instance, the employer has to determine how the employee has exposed the workplace to COVID-19 and how that might affect the employer\u2019s business and operations.\u00a0 The employer may even have concerns about how the employee\u2019s \u201crisky\u201d behaviour will affect the employer\u2019s reputation.<\/p>\n
It remains unclear as to how employers should approach this situation.\u00a0 Should the employer discipline the employee in any way?\u00a0 Provide only a verbal warning or perhaps a written sanction to the employee?\u00a0 Fire or terminate the employee immediately?\u00a0 Some well-informed employers may have some sort of workplace policy related to these issues and COVID-19, which may provide some guidance.\u00a0 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.<\/p>\n
Moreover, unfortunately, the law in Ontario does not provide us a lot of guidance either.\u00a0 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.<\/p>\n
It also remains unclear as to how an employer should approach an employee who refuses a COVID-19 vaccine.\u00a0 There of course may be legitimate human rights issues (such as a disability) that causes the employee to refuse a COVID-10 vaccination.\u00a0 This situation is easier for the employer as they would try to accommodate the employee unless there was undue hardship.\u00a0 Certain lawyers have suggested that the employer cannot either discipline or fire the employee.\u00a0 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.<\/p>\n
However, it may not be that simple.\u00a0 The fact is that COVID-19 remains a dangerous public health threat.\u00a0 It is not simply the flu.\u00a0 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.\u00a0 In addition, the fact is that COVID-19 has already caused major changes to the workplace.\u00a0Under Ontario\u2019s\u00a0Health and Safety Act<\/em>, 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.<\/p>\n We suspect that many of the above concerns will be flushed out by Ontario\u2019s courts in 2021.<\/p>\n","protected":false},"excerpt":{"rendered":" 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\u2019s business.\u00a0 The second is whether employers are going to tolerate an […]<\/p>\n","protected":false},"author":4,"featured_media":1954,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15],"tags":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"https:\/\/www.zeilikmanlaw.com\/wp-content\/uploads\/2021\/06\/vaccine111.jpg","_links":{"self":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts\/1621"}],"collection":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/comments?post=1621"}],"version-history":[{"count":0,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts\/1621\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/media\/1954"}],"wp:attachment":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/media?parent=1621"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/categories?post=1621"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/tags?post=1621"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}