Canadian Lawyer

March 2022

The most widely read magazine for Canadian lawyers

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Page 6 of 51 5 "I would say, one out of every three calls that we get — we get about 20–25 calls a day — is based on COVID vaccine mandates. So it's a huge, huge, huge issue." For lawyers, or in fact any employee, who remains steadfast in their unvaccinated status, there is not yet any "clear authority" on how the courts would handle the issue, Lecker says. At the time of writing, there were three relevant arbitration decisions, all dealing with collective agreements. But Lecker's position is that vaccine mandates are unenforceable. For one, the policies impose on an employee a condition after the fact. Secondly, employers typically first suspend the person, giving them a few months to wise up. After that, when the employee comes back and is still not vaccinated, they are then terminated for cause. That is condon- ation, says Lecker, which is when a party has forgiven or chosen to ignore an act against which they bring a legal complaint. "That, in our view, would be illegal," he says. The third issue is that employers cannot demand private health information. A new problem is emerging with the Omicron variant, says Lecker. While there is no doubt that vaccines significantly lessen the severity of the illness and help prevent hospitalization, fully vaccinated people can still spread the virus. So, he says an employ- er's argument that they cannot accept unvaccinated employees infecting other staff is losing its coherence. Lecker is telling people terminated for vaccine refusal that they have a case for wrongful dismissal. While employers with vaccine mandates will have liability, they can enhance their legal position if they offer options, such as regular testing, work-from- home and PPE, he says. "If I've done all that, as an employer, I'm a lot safer." MANDATORY VACCINE POLICY UPHELD IN ARBITRATION Daniel Chodos and Simone Ostrowski, of Whitten & Lublin Employment Lawyers, were successful in an arbitration concerning a vaccine policy they drafted. It contained these key points: Staff are required to be vaccinated on schedule with advance notice. Appointments during work hours are accommodated Signed declarations of vaccination status are required Company has the right to require proof of status Policy can be amended as public health guidelines change Masks are also required Vaccine disclosure information is consistent with privacy legislation, only used to the extent required to implement policy, to minimize privacy concerns Legitimate medical and religious exemptions are available "To not have people, part of our team, vaccinated is a statement that we don't care about the community as a whole" Perry Dellelce, Wildeboer Dellelce LLP

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