Status of mandatory COVID vaccine litigation

A look at recent decisions provides insight into how these cases will be decided

Status of mandatory COVID vaccine litigation
Geoffrey Lowe

Exclusive to Canadian HR Reporter from Rudner Law.

Remember the start of the pandemic? The general feeling of uncertainty that many of us shared as society came to terms with a new virus? After almost a year, a vaccine emerged and soon became widely available. This availability was met by a broad implementation of vaccine mandates as employers sought to transition back to in-person work.

Mandates typically required that an employee disclose their vaccination status or provide a reason (religious or medical) why they could not be vaccinated, combined with consequences for not doing so. Some employees bridled at the mandates and either refused to disclose their vaccination status or to become vaccinated, and were put on indefinite, unpaid leave.

Others were dismissed for failing to comply with their employer’s instructions - some for cause.

The legality of dismissals for cause related to vaccine mandates was not immediately clear - and remains that way. As we have previously discussed, the assessment will be a fact-specific one, including a review of whether the vaccine mandate is reasonable.

There have been several cases considering whether this unpaid leave was constructive dismissal. However, to date, it does not appear that any case regarding a for cause dismissal for refusing to comply with a vaccine mandate has reached a verdict. That said, there has been at least one motion and several tribunal decisions on the subject which may provide insight into how these cases will be decided.

An overview of cause dismissal

Dismissal for cause has been described as the capital punishment of the employment relationship since the consequences are drastic: an employee dismissed for cause will not be entitled to any compensation in most cases.

When assessing whether an employer had cause to dismiss, courts and tribunals will consider not only the impugned conduct, but factors including the employee's track record, and where possible, the employee's reaction when confronted with the employer’s allegations.

A for cause dismissal for refusing to comply with a vaccine mandate will include an additional component: the reasonableness of the requirement. While we all know that insubordination or breach of policy can be cause for discipline or dismissal, that is only true when the order or policy itself is reasonable in the circumstances. The context will be crucial in this regard - a vaccine mandate may be reasonable for a hospital employee, but unreasonable for a fully remote worker. The majority of employers will not have as clear-cut of a situation and the reviewing body will make a decision regarding reasonability.

Other non-cause cases have assessed the reasonability of a mandate by confirming that it included a means to claim an exemption from being vaccinated for religious or health related reasons. The court may also assess whether a vaccine mandate was necessary, by reviewing the employer’s experience during the pandemic and the impact that Covid had on its operations.

Recent vaccine mandate cases

In Maalouf v. Bayer Inc. the plaintiff was dismissed for cause for refusing to be vaccinated. The litigation is underway and appears to be in the discovery stage. The matter came before the court regarding the plaintiff’s responses at discovery.

The defendant asked the plaintiff questions about her beliefs regarding vaccinations and the basis for these beliefs, as well as whether the plaintiff had been vaccinated since her dismissal - all of which were refused. The defendant brought a motion to compel the plaintiff to answer these questions. The court found that the impugned questions were legitimate, based on language in the Statement of Defence alleging that the plaintiff’s failure to get vaccinated was a failure to mitigate, and that the plaintiff did not have a reasonable basis not to become vaccinated. As a result, the questions met the relevance threshold at discovery.

In Canada Post Corporation v Canadian Union of Postal Workers, the employer implemented a mandatory vaccination policy on the honour system - all an employee had to do was attest to having been vaccinated. Any employee who did not submit this attestation would be put on an indefinite, unpaid leave of absence. The employer audited 10% of these attestations; the grievor was chosen, and had to supply his proof of vaccination. He did - with a date indicating that he had been vaccinated two and a half weeks after having submitted his attestation. The employer dismissed him for just cause, citing his dishonesty and his having put the health and safety of his colleague at risk.

At arbitration, the arbitrator found that the vaccination policy was reasonable as it included a process to obtain a religious or medical exemption. The arbitrator also found the policy to be necessary - between January and March 2022, Canada Post alone had approximately 1500 cases in Ontario. The arbitrator ultimately upheld the dismissal, as the employee had knowingly breached his employer’s policy by being deliberately dishonest.

In Milovac v. Canada (Attorney General) the plaintiff’s employer required him to disclose his vaccination status. The plaintiff refused, citing his freedom of conscience under the Canadian Charter of Rights and Freedoms. When the employee failed to provide his vaccination status, he was placed on an unpaid leave of absence and advised that he would be dismissed by the end of the month if he did not provide confirmation that he had been vaccinated. He did not, and was dismissed.

The plaintiff filed an application for employment insurance, which was denied. The Social Security Tribunal’s (SST) General Division noted that his dismissal had been for misconduct: failing to comply with his employer’s vaccination requirements despite being warned of the consequences. The employee sought leave to appeal to the SST’s Appeal Division, which was denied. The employee then appealed to the Federal Court to have the Appeal Division’s decision set aside, which was also denied.

Takeaways on COVID and dismissal for cause

We still do not have a clear answer on whether refusing the vax will be the basis for a dismissal for cause. However, these three cases may provide some insight into how these matters will be addressed going forward. Realistically, we do not expect one answer to apply across the board; the reasonableness of the mandate will have to be assessed in a context-specific manner.

Maalouf indicates an individual’s reason for refusing a vaccine is going to be a valid line of questioning on discovery - if supported by the pleadings.

CUPW does not break any ground - being penalized for dishonesty is nothing new. However, the magnitude of the penalty suggests that lying about one’s vaccination status may be enough to substantiate a for cause dismissal.

Finally, Milovac gives some insight into what a reviewing body will take into consideration when reviewing a dismissal. A decision of the SST is not going to be binding in other forums, but it is interesting to see that a dismissal for refusing to disclose one’s vaccination status was deemed to be misconduct for purposes of obtaining Employment Insurance.

These matters continue to work their way through the legal system and we will continue to monitor and report on them as answers emerge.

Geoffrey Lowe is an associate at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].

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