Canadian Lawyer

April 2021

The most widely read magazine for Canadian lawyers

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Page 17 of 51

16 LABOUR AND EMPLOYMENT SPECIAL PROMOTIONAL FEATURE Constructive dismissal, mandatory vaccines top of mind as pandemic continues Employers must get back to the roots of their principles and be prepared — because we're not out of the woods yet IN JANUARY 2020, Marie-Hélène Jetté was planning a conference on attracting and retaining employees. This year, she's talking about mandatory vaccines, assisting employ- ees with psychological issues and how to pro- tect IT systems. Employers have learned many lessons over the course of the COVID-19 pandemic, but for Jetté, a partner at Langlois Lawyers and head of the labour and employment group, the most important are having great human resources people, strong contingency plans and experi- enced attorneys to provide day-to-day advice. "None of the employment contracts, pol- icies or collective agreements were adapted for such a situation," says Jetté. "We need to return to those documents and see what should be done." In the coming months, she predicts that constructive dismissal — the unilateral change by the employer of a substantial working condition — will become an issue. Some employees prefer working from home, while, on the flip side, some employers have off- loaded empty office space and don't want their workforce to return to the office. It comes down to what's considered a sig- nificant working condition, and Jetté thinks that will be decided on a case-by-case basis. It might be a question for Quebec's tribunals when it comes to employers telling employees they can't come back to the office, but "what seems clear to me is if I hired you to work on my premises full time and you refuse to come back, employers could take the high hand and say that's your choice and your resignation because I haven't changed anything." Another area of potential conflict is the COVID-19 vaccine. Similar to questions at the beginning of the pandemic dealing with their right to demand testing, employers are wondering if they can mandate vaccines in the workplace. Although Jetté doesn't recall employers putting pressure on employees to get the flu shot — maybe in the health sector, but not in other areas, she says — this will be different. Employers want employees vacci- nated and have a general obligation to pro- tect the health and safety of their workforce. While one of the measures could be vaccina- tions, especially if there are people working closely together, Jetté says she doesn't see how an employer could force vaccination. "That doesn't mean, however, that there can't be administrative consequences," she says, such as limiting where that person is allowed to work because it would incur greater risk for them or their colleagues, keeping unvaccinated employees working from home or requiring them to continue to wear PPE. Overall, employers learned that they have to get back to the roots of their principles and ensure they are as prepared as possible for the pandemic environment — because we're not out of the woods yet, Jetté warns. "A lot of employers are still under crisis, but people need to take their head out of the water — and I'm not sure all of them have." Langlois Lawyers is Québec's largest independent law firm, with close to 150 practising lawyers based in Montréal and the city of Québec and around 300 team members working to provide its clientele with a complete range of high-quality legal services in civil and commercial litigation, business law and labour and employment law. Having earned a reputation for excellence, the firm received numerous distinctions in 2020, which include being named "Regional Law Firm of the Year in Canada" by Chambers and Partners and ranking first among the Top 10 Quebec Regional Law Firms, according to Canadian Lawyer. Brought to you by "None of the employment contracts, policies or collective agreements were adapted for such a situation. We need to return to those documents and see what should be done." Marie-Hélène Jetté, Langlois Lawyers

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