When Covid-19 vaccines were approved for widespread use in Canada in 2021, several organizations began mandating vaccines for clients, visitors, and employees. While employers are required to accommodate those who cannot get the vaccines for medical or religious grounds, this is not always possible depending on the individual role and the requirements of the job. As a result, some employees, particularly in industries where employees are often required to work onsite, were terminated due to a refusal to get vaccinated.
Now, some of these companies are rescinding the mandatory vaccination policies and offering jobs back to those who were terminated. However, some employees have opted to bring lawsuits for wrongful dismissal rather than returning to their former positions. For example, one large Alberta employer in the oil and gas industry has recently started offering jobs back to employees who had previously been terminated or placed on unpaid leave as a result of the company’s mandatory vaccination policy, but they are also facing a large number of lawsuits from employees claiming wrongful dismissal or lost wages.
Unique Challenges Facing Oil & Gas Industry Regarding Vaccines
While many businesses were able to shift large numbers of employees to a work-from-home model during the pandemic, thereby sidestepping the question of whether or not to mandate vaccines, the nature of some industries or jobs required employees to be in the workplace. The oil and gas industry in Alberta, for example, relies on a large population of on-site workers to run production and maintenance at the various oilsands in the province and working remotely is not an option.
Once vaccines became available to the public, many oil and gas companies opted not to mandate the vaccines for employees at the workplace. However, there were still challenges due to federal mandates for transportation. Getting to the oilsands often requires workers to fly to remote worksites and work in camps for days or weeks at a time, and then fly home again. With vaccines required for flights within Canada, it made it difficult for workers to get to their jobs. In addition, the close quarters of the work camps made it hard to keep infection numbers down. Alberta oilsands faced significant infection rates, with nearly 10% of all worker’s compensation claims due to Covid infections belonging to oilsands employees.
In an effort to deal with some of these challenges, one company in the industry made vaccines mandatory for all employees at the end of 2021. In August of 2021, the company mandated vaccines for staff but offered onsite rapid testing as an alternative for those who opted not to get vaccinated. However, in response to a rise in infections throughout Alberta, the company opted to remove the rapid-testing option and required all employees to get vaccinated in December of last year. While accommodations would be provided for those who were unable to get vaccinated due to medical or religious grounds, all others who could not provide proof of vaccination were placed on unpaid leave or terminated.
Now, the company has removed the mandate and begun recalling workers who were on unpaid leave. However, some employees who lost out on significant income during the interim have opted to sue instead, filing claims for wrongful dismissal and unpaid wages, with some claims in excess of a million dollars.
Is it legal to be fired for refusing to get a vaccine?
The vaccine issue has raised many questions in the area of employment law over the past year. However, at the end of the day, employers are permitted to terminate an employee for any reason so long as the employer provides sufficient notice or pay in lieu.
In Alberta, an employee is entitled to notice and/or pay in lieu under the provincial Employment Standards Code as follows:
- 1 week for employment over 90 days but under 2 years
- 2 weeks for employment over 2 years and less than 4 years
- 4 weeks for employment over 4 years and less than 6 years
- 5 weeks for employment over 6 years and less than 8 years
- 6 weeks for employment over 8 years and less than 10 years
- 8 weeks for employment over 10 years
These are the minimum requirements under the legislation, but the common law has evolved to also provide what is referred to as a common law notice period, which is often much more generous than the minimums provided under the Code.
If an employer were to terminate an employee for refusing vaccination, they can do so as long as they provide adequate notice or pay.
Wrongful Dismissal Claims Untested to Date
It is unclear whether the claims mentioned in the news articles about the lawsuits are all from employees who were terminated, or if some were simply placed on temporary unpaid leave. It is also unclear whether the terminations were with cause or if the employees were paid termination pay in lieu of notice. It will be interesting to see how these cases are interpreted by the courts, as the findings could have a significant impact on how Alberta employers operate concerning mandatory vaccination policies in the future.
Contact DBH Law for Skilled Representation in Workplace Disputes
The lawyers and staff at DBH Law believe in relationship-building and fostering strong, long-term connections with our clients. This approach allows us to provide tailored, trusted, bespoke advice to help clients manage their risks and reach their goals. We pride ourselves on the fact that most of our clients were referred to us by former and current clients. To learn more about how we can help you, us online or by phone at 403-252-9937.