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Howard Levitt: Can you lie about your vaccination status to your company?

Some employees don’t want to admit to being vaccinated for fear they may be asked to return to the office

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As people get vaccinated, do they have to tell their employer? Variations of this question are increasingly popping up in my inbox these days.

A lot of workplace vaccination games seem to be going on, as some employees don’t want to admit to being vaccinated for fear that they may be asked to return to the office.

My answer is that if the employer, in enacting its safety protocols, wishes to know whether employees are vaccinated in order to protect them, their coworkers and customers, the worker is obliged to answer. Being dishonest could be cause for discharge. As vaccines become readily available, employees will have the right to require compulsory vaccinations for those working closely with others — subject to medical and religious exemptions — and it would be cause for discharge for an employee to lie about their vaccination status as they would be placing the health of others at risk. Lying to avoid the employer’s right to return them to the office is another offence worthy of dismissal.

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Here is a selection of other emails and inquiries I have received lately.

Q: What sort of obligation does an employer have to tell employees that they have been exposed to COVID-19 and how soon do they have to do it? Several employers (such as chain restaurants and grocery stores) do not seem to communicate to their employees in a timely manner that they may have been exposed to a co-worker that tested positive. This is leading to considerable mistrust in the workplace.

A: An employer has the obligation to quickly inform employees who they believe could have come into contact with someone who had COVID-19. They must also insist on those employees being tested and remaining absent from the workplace until they have a negative test. Failing to do so leaves them liable for negligence to any employee or others who develop COVID-19 because of the employer’s recklessness in not informing them. It also creates potential liability under the Occupational Health and Safety Act and other public health legislation.

Q: If an employer provides paid time off for you to have a medical procedure and then you quit and do not return, can the employer sue for its money back?

A: If there is a company policy requiring payment for absences to take medical procedures, then the employer must pay for the time taken, unless it can prove that more time was taken than was required pursuant to the policy.

If the policy did not exist and the employer provided the paid time as a voluntary benefit to the employee, who took the procedure and immediately resigned, the company could sue to recover its money as the benefit was provided to the employee in anticipation of their returning to work.

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Whether there is a policy or not, if an employee takes a paid leave but did not take the time off for the reason provided, the employer can always sue for its money back. There is also the overriding issue that, if an employee resigns without adequate notice, i.e. enough notice for the employer to find a trained replacement, the employer can sue that employee for wrongful resignation to recover its damages suffered as a result of the inadequacy of the notice.

Q: I am working in an oppressively hot and unsanitary workplace for nine hours a day without breaks. Is there anything that I can do?

A: Under employment standards legislation, an employee is entitled to a break after a certain number of hours worked.

In Ontario, for example, they are entitled to 30 minutes unpaid break after every five hours. In Ontario, once their work hours, excluding lunch but including any breaks, amount to 44 hours per week, the employee is entitled to pay at time and one half for all weekly hours thereafter. There is a similar legislation in each province.

As for the working conditions, if they are unsafe from a health standpoint, the employee can protest and refuse to work until either the workplace is rendered safe or a health and safety inspector visits the workplace to determine whether it meets health and safety standards. Until it does, the employee need not work. But if the inspector rules that conditions are safe, it would be cause for discharge for the employee to continue to refuse to work.

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Such inspections have become increasingly common under COVID-19 and inspectors have ruled overwhelmingly in favour of employers. I suspect that record has much to do with employees seeking inspections because of their fear of going to work when those workplaces, even if not safe in all respects, have objectively met the guidelines set out by health authorities.

Q: Under the emergency order, can employees strike even if they are supposed to stay at home?

A: If the business is one that would be permitted otherwise to stay open, my view is that charter protection respecting the right to strike would override the emergency order, until and unless the government enacts the “notwithstanding clause” in the charter.  However, picketers would otherwise have to abide by safety standards i.e., staying six feet apart and wearing masks etc. This has not yet been tested but that would be the likely legal outcome in my view.

Got a question about employment law during COVID-19? Write to Howard at [email protected].

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

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