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Mandatory vaccine rules likely to standup in court: Employment lawyers
CTV Windsor reporter Michelle Maluske
Published Tuesday, August 24, 2021
WINDSOR, ONT. -- Two Canadian employment lawyers tell CTV News mandatory vaccine policies will be difficult for people to fight.
“Employees are unfortunately going to have to get vaccinated in order to return to work,” says Athan Makrinos.
Makrinos says employers are within their rights and are legally bound to provide a safe work environment.
“They could be liable for millions and millions in damages if they don’t (and an employee gets COVID from the workplace),” adds lawyer Howard Levitt.
Both acknowledge that COVID is a new crisis, and none of the vaccine policies have yet been challenged in court.
However, they both say they are confident an employee would not be successful if they tried to fight for severance pay or to be reinstated, if they lose their job over vaccine status.
“Individuals who do not have a medical or religious bona fide reason for not receiving the vaccine will not meet success, should they escalate this to an actual, real grievance,” says Makrinos.
Levitt adds the number of Canadians who will qualify for a medical or religious exemption is extremely low
Before anyone puts their employment in jeopardy based on on-line advice from anti-vaxx shysters keep in mind that blue-chip Bay Street law firms in Toronto, the very best legal minds in the country, have no doubts about the legality of mandatory vaccination requirements and are introducing them in their workplaces.
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Law firms embrace COVID-19 vaccine mandates
JAREN KERRMERGERS AND ACQUISITIONS REPORTER
PUBLISHED AUGUST 25, 2021
UPDATED 1 DAY AGO
Several Bay Street law firms are joining a wave of Canadian companies that now require employees to be fully vaccinated to return to the office.
In recent weeks, large employers such as Sun Life Financial Inc., University Health Network and Canada’s five largest banks have announced mandatory vaccination policies. Nine corporate law firms told The Globe and Mail they, too, have implemented vaccine mandates, or plan to in the near future.
Osler, Hoskin & Harcourt LLP, Wildeboer Dellelce LLP, Fasken, McMillan LLP, Gowling WLG Canada, Norton Rose Fulbright Canada LLP, Cassels Brock & Blackwell LLP, McCarthy Tétrault LLP and Lenczner Slaght LLP make up the list.
Borden Ladner Gervais LLP, the country’s largest law firm, said it is “strongly encouraging” its workers to be vaccinated. BLG said it will make a firm decision on its vaccine policy after collecting the results of a survey sent to its 1,928 employees.
The COVID-19 pandemic forced remote work on many white-collar employees, and managers across corporate Canada have seen proof that their workforces can still be productive taking calls in their living rooms. But with 73 per cent of Canadians age 12 and older now fully vaccinated against the coronavirus, some executives are eager to bring staff back to the office, where they believe there is better communication, more camaraderie and a stronger sense of a common goal.
“The walls around the unvaccinated are crumbling down,” said Perry Dellelce, one of the founders of Wildeboer Dellelce LLP and managing partner. The firm announced a mandatory vaccination policy on Aug. 16.
“It’s just ridiculous and lacks common sense to not follow the science and to not get vaccinated,” Mr. Dellelce said, adding that, so far, he has only received positive feedback about the policy from his employees.
Several firms told The Globe their vaccine mandates will come into effect in September, together with their plans to bring lawyers back to the office. The vaccine mandate at Norton Rose Fulbright, for example, begins on Sept. 15.
“We did so because we believe vaccination is safe; it’s necessary to protect our people and their families; and it’s the right thing to do for the country to recover and move forward,” said Barbara Timmins, a spokeswoman for the firm.
Some firms told The Globe their vaccination policies make room for exceptions. McCarthy Tétrault, which enacted its policy on Aug. 23, is giving unvaccinated employees paid time off to get their shots by Sept. 30. It will consider exemption requests from “those who cannot be vaccinated due to medical or other grounds,” according to Pat Dean, a consultant at the firm.
“If a firm member is granted an exemption, they will be accommodated in a way that protects their safety and other members of the firm’s safety as much as possible,” he said.
Exemptions for medical and religious reasons will be an option at Cassels Brock as well. Its vaccine mandate also includes outside vendors and visitors. The 600-person firm is currently in the first phase of a three-step return-to-office plan, which makes attendance voluntary for now. On Nov. 1, the firm will officially begin a hybrid work model, with employees working at the office for part of the week.
Mr. Dellelce said a vaccine mandate will make office collaboration possible again, which he believes is necessary to get the best out of employees.
“We can’t build a business with satisfaction, challenge, growth, excitement, innovation, remotely,” he said. “You need to live the failures and enjoy the successes together in person … there’s no substitute for that.”
He added the return to the office will benefit young lawyers who need mentorship to advance their careers. Many people in the legal industry have expressed concern the pandemic and remote work have stunted the development of early-career lawyers.
“Mentorship of our young people is not the same, for sure,” Mr. Dellelce said. “Our young people will not be as good lawyers as a result of this [pandemic], or it will take time ... you can’t walk through a legal issue or a document without having that interaction.”
Ottawa has made vaccination a requirement for federal public servants, and said it expects Crown corporations and employers in federally regulated industries, such as telecommunications and insurance, to do the same. Rogers Communications Inc. and insurer Canada Life Assurance Co. are among companies that have recently enacted vaccine mandates.
Many smaller workplaces are also in favour of vaccine mandates. In a recent poll by KPMG Canada, 62 per cent of Canadian small and medium-sized businesses said they plan to make vaccinations mandatory for employees.
The wave of employer mandates is happening as more venues for leisure and recreation are requiring vaccinations to enter. Restaurants across the country have enforced vaccine policies, and Maple Leaf Sports & Entertainment – which owns the Toronto Maple Leafs, Toronto Raptors and Scotiabank Arena – will require proof of vaccination or a negative COVID-19 test result to enter its events.
So your options are to convince your employer you have joined a new religion or convince a doctor that you are exempt on legitimate "medical grounds." Don't expect your employer to just take your word for it and be prepared to provide proof.
