Federal and Toronto governments threaten suspension, termination of employees who fail to get vaccinated

Thestar.com
Oct. 7, 2021

Two levels of government took a hard line on vaccination status Wednesday, now threatening to suspend or fire employees who refuse to get the jab.

How those employer mandates play out could be very different depending on whether the public servants work for Toronto or Ottawa.

A Toronto-based employment lawyer said the City of Toronto has no legal grounds to terminate employees for cause and one of the two largest city unions says they have already filed a grievance against the policy.

The city rules could apply to about 1,800 employees -- about 6 per cent of all active employees -- who had yet to disclose their status as of Wednesday and 850 or about 3 per cent who said they are not yet vaccinated.

After introducing a vaccination mandate in August with a deadline to show proof of full vaccination by Oct. 30, city manager Chris Murray wrote to employees Wednesday saying anyone not in compliance would be suspended without pay for six weeks starting the week of Nov. 1.

Following that period, anyone not vaccinated by Dec. 13 will be fired.

Anyone who has been suspended can provide proof of vaccination to return to work and employees who receive their first dose by Oct. 15 will have until Nov. 15 to get their second dose, the memo said.

Employees will not be able to use vacation or other days provided to them under their contracts to be paid during their suspension, the memo said.

“I want to reassure you that the number of staff not fully vaccinated is low and that divisions have already begun to consider plans to mitigate any service or staffing impacts resulting from this policy enforcement,” the email from Murray to employees said. “If you have not yet disclosed your vaccination status, it’s not too late.”

Separately on Wednesday, the Liberal government made good on a pre-election pledge to make COVID-19 vaccinations mandatory for all federal public employees, with a deadline of Oct. 29.

Consequences included unpaid leave, being barred from accessing their workplace and being unable to participate in business-related travel and conferences. Officials said most employees would not be entitled to employment insurance.

Those who start the vaccination process will be permitted to resume work but face additional leave if they don’t get their second dose within 10 weeks of receiving their first.

Unlike the city process, which requires employees to upload their vaccine certificate through an online portal, federal public servants only need to sign an online attestation form confirming their status, although individuals may need to show evidence at a later date.

“Anyone who lies on their attestation will face severe consequences, and there will be verifications done over the following weeks to ensure that everyone is vaccinated,” Prime Minister Justin Trudeau said at a press conference Wednesday.

In the case of both city and federal employees, accommodations will be made for those who qualify for exemption from vaccination for valid human rights reasons. The Ontario Human Rights Commission has said that choosing not to get vaccinated as a “personal preference” does not fall under accommodations recognized by the code.

Toronto employment lawyer Fiona Martyn, an associate at Samfiru Tumarkin LLP, told the Star that it’s “misleading” for employers like the city to say their employees can be terminated for cause.

“If an employee is terminated they’re owed severance,” she said, adding they would also qualify for employment insurance. What that payment would look like depends on the employee’s collective agreement if they’re unionized or their individual contracts if not.

She said firing a municipal employee for cause for not being vaccinated is not legal unless there is a provincial or federal mandate requiring they be inoculated -- for example, the provincial mandate requiring long-term care employees be vaccinated, including municipal care workers.

And an unpaid leave, Martyn said, could amount to what’s called constructive dismissal and also cost the city.

CUPE 416, the union representing indoor workers for the city, sent a notice Wednesday they have filed a policy grievance with the city “alleging the application of the policy is unreasonable and violates provisions of the collective agreement.” No further details were provided.

In the case of the federal government, the situation is likely different, Martyn said.

There is more of an argument, she said, that the new policy announced in Ottawa on Wednesday amounts to an official mandate for federally-regulated employees and that those terminated at that level may not be entitled to severance.

As is the case in Toronto, not all arms of the federal government are included in the sweeping measures.

Ottawa said it applies to all public servants who are part of the “core public administration,” which includes those who work within federal departments, the Royal Canadian Mounted Police, Correctional Service Canada and the Canada Border Services Agency.

Notably, employees who work remotely and internationally must also ensure they are fully vaccinated.

But members of departments that serve the public, including Service Canada, Veterans Affairs and the Canada Revenue Agency, will not fall under the policy, nor will members of the Canadian Armed Forces.

“We are also directing Crown corporations and agencies to implement policies that mirror those we are announcing today,” Deputy Minister Chrystia Freeland said. “The chief of defence staff will issue a directive mandating vaccination for the Canadian Armed Forces, and we are working with employers in federally regulated workplaces.”

Meanwhile the TTC said potential consequences for not adhering to their vaccination policy -- which mirror’s the city’s -- are “still under discussion” and there is no decision as to whether they will implement a similar policy on suspensions and termination.

As of Wednesday morning, more than 20 per cent of TTC workers had yet to disclose their vaccination status -- a significant portion of the workforce. Of the nearly 77 per cent of employees who disclosed their status, all had at least one dose and more than 90 per cent were fully vaccinated.

Other major arms-length operations, like the Toronto Police, did not have vaccination as a condition of employment and no officer can face consequences for failing to disclose their vaccination status under an arrangement negotiated with their union. A Toronto police spokesperson said Wednesday that the policy was still under development.

Previously, 86 per cent of Toronto police members had disclosed their status and of those around 97 per cent are partially vaccinated and 92 per cent are fully vaccinated.

Martyn said it’s still undetermined how courts and tribunals will decide these issues, with no case law to speak of yet, as the first cases land in the legal system.

You can’t stop an employer from firing you, she said, which may push employees to get vaccinated to save their jobs.

Unionized employees must pursue their cases through the grievance process while non-unionized employees can launch lawsuits against their employers.

“We’ve been inundated with the fraction of the population that does not want to get vaccinated,” she said.