Refused the jab, lost her job
A wave of workers will soon be let go as businesses enact vaccine mandates
Consider it an early litmus test for employers across Canada.
At a cosy retirement home in Burlington, an uncomfortable workplace drama was unfolding among staff and management as fall crept in.
Senior management at Chartwell Residences, Canada’s largest provider of seniors’ homes, had recently joined several private long-term-care providers in publicly announcing mandatory vaccinations for its staff. All employees would need at least one dose of a government-approved vaccine as of Oct. 12, they said. Those who refused would face repercussions.
At Chartwell’s Christopher Terrace in Burlington, the announcement was met with some internal resistance. At least eight staff initially opposed the requirements.
Fani Smoljanovic, the longest-serving employee at the home, outright refused. The front-line worker started at Christopher Terrace when she was just 19 years old, one of few teenagers with a passion for seniors care.
As the October deadline loomed, the company sent regional managers and educational materials to Christopher Terrace to drive home the advice of medical professionals everywhere: That government-approved vaccines have been tested thoroughly and are safe for the vast majority of the population.
Still, Smoljanovic was hesitant. She was scared to take the vaccine. If she did, she wanted the nursing home to sign a waiver accepting liability in case she had an adverse reaction.
“I just needed someone to be liable in case something happened to me,” she told the Star. “But they didn’t want to do that.”
Chartwell declined the request. On Oct. 12, she received a letter from her long-time employer:
“You were provided with ample notice that you were required to have at least a first dose of an approved COVID-19 vaccine by no later than Oct. 12, 2021,” the company wrote.
“We have no choice but to terminate your employment for cause, effective immediately.”
Chartwell did not respond to questions about this specific case, but said that the vast majority of their employees are vaccinated.
Mandatory vaccine policies have become increasingly common among major Canadian companies. Motivated to spur the economy, governments at all levels have encouraged employers to impose vaccine policies on their workforces.
Employers, meanwhile, are keen to get their workers back to the office and make up for the revenue they lost during unprecedented lockdowns.
Beginning in August, a string of corporate titans — including several of the largest banks, airlines, railway operators and automakers — told employees they had a matter of months to get fully vaccinated, or face penalties.
But few companies specified what those penalties might be.
Imposing a vaccine policy on staff is much easier said than done. Employers must navigate unprecedented legal territory and could wind up in court. Firing workers means losing productivity in an already precarious labour market, and the cost of severance for some businesses could far exceed what they are willing or able to pay.
“For employers, this is a really complicated situation,” said Nita Chhinzer, an associate professor in human resources and business consulting at the University of Guelph.
“Companies are fully aware that, when they mandate vaccines, they will lose some portion of their workers. And that has all sorts of implications.”
At Chartwell, Smoljanovic’s dispute with the company was, first and foremost, an HR matter. The 42-year-old had climbed the ranks over several decades, moving from a unionized employee to a member of the management team as she gained the trust of her co-workers and the respect of her bosses.
She had a long history with the company and was well-acquainted with her co-workers and residents, making her dismissal all the more uncomfortable for the home.
Divisions between the vaccinated and unvaccinated have prompted awkward working environments elsewhere as well.
In August, teachers at Western University in London said they would not attend classes on campus until the school implemented a vaccine policy. One month later, when the school implemented the policy, a professor affiliated with the university posted a YouTube video in which she refused the vaccine and questioned the ethics of “coercing people into medical procedures.”
She was placed on a paid leave of absence shortly after.
One hospital in Windsor recently terminated 57 employees who refused the vaccine.
But who knows how many fully inoculated workers might have left if no vaccine policy was implemented, Chhinzer noted.
Already, industries across Canada are experiencing labour shortages that have hampered production.
A report released in September found that more than 60 per cent of Canadian businesses have been hurt by widespread shortages in food services, trade jobs, transportation and more. More than 60 per cent of small- and mediumsized business owners reported increasing their own hours or their employees’ work hours as a result.
At a home like Christopher Terrace, which employs a small team of roughly 35 workers, no missing employee goes unnoticed.
“With businesses already having trouble staffing, the mandatory vaccination policies are an additionally tricky part of the puzzle,” said Chhinzer.
“Businesses know they might lose even more workers. They know that they’ll have to increase labour costs through overtime for the remaining workers, or that they’ll have to modify their business model entirely.”
Employers are also poised to pay more in legal fees and severance pay to compensate workers that are terminated.
Shortly after her dismissal, Smoljanovic retained a lawyer to offer guidance on her labour rights.
Her termination letter said she was terminated with cause, meaning she had violated the terms of her employment and would not be eligible for severance pay. But Smoljanovic contends that getting vaccinated is not a reasonable term of employment.
Legal experts say Ontario’s nursing homes have a strong legal case for mandating vaccine policies.
In October, the province announced it was requiring vaccinations for all in-home staff, support workers, students and volunteers at nursing homes by mid-November.
The government-imposed mandate gave retirement homes few options but to follow provincial rules.
Other industries don’t necessarily have that kind of leniency, says Mackenzie Irwin, an employment lawyer at Samfiru Tumarkin LLP.
“Absent a government order requiring a certain industry or employer to impose a mandatory vaccine policy, it’s very likely that policy is illegal,” Irwin said.
The firm is advising employers intent on imposing vaccine policies to place unvaccinated employees on unpaid leave or dismiss them without cause.
“That’s probably the least risky thing you can do,” Irwin explained.
“When you terminate an employee, you can either terminate them with cause and provide no severance pay, or you can terminate them without cause and provide severance pay. I advise my clients to go the second route, if they insist on it, because it’s very hard to tell right now whether failure to abide by a mandatory vaccine policy constitutes just cause for termination.”
Some disagree. Howard Levitt, a senior partner at Levitt Sheikh, previously told the Star he thinks the courts will favour employers terminating employees with cause, on the grounds that public safety trumps privacy in an unprecedented circumstance with a clear solution: widespread vaccination.
But employment lawyers generally advocate for companies to err on the side of caution. Marty Rabinovitch, partner at Devry Smith Frank, previously told the Star it will be months before the courts hear these cases. Until then, most employers would be prudent to put employees on leave or offer severance for those who refuse the vaccine.
A widespread mandatory vaccination policy will be harder to uphold at places like accounting firms or autoplants, where workers are not dealing with vulnerable populations, Rabinovitch said.
Regardless of what the courts rule, Irwin says she expects to be inundated in the coming months with clients who were dismissed for not being vaccinated.
“One thing’s for sure: They’re going to want compensation,” she said.