In employment disputes over vaccine mandates, lawyers say context and reasonableness will be key factors, and the Omicron variant’s high transmissibility may work against some employers.
COVID vaccine mandates are common in Canadian workplaces, and while they are producing a lot of client calls for employment lawyers, there is not yet any judicial guidance for drafting a standard policy.
Bram Lecker, principal of Lecker & Associates, says employers cannot enforce vaccination mandates. Employers cannot demand private health information from employees and cannot impose a condition on employment after the fact, he says. Also, employers typically first suspend the unvaccinated employee, giving them a few months to comply. After that, when the employee comes back and is still not vaccinated, they are then terminated for cause. That is condonation, says Lecker. “That, in our view, would be illegal.”