NON-UNIONIZED WORKERS
The NSCLA takes the position that, absent a Government mandate ordering a business to require vaccination of their staff, a business has no grounds or authority to require staff to be vaccinated without providing alternatives for those who do not wish to be vaccinated or disclose their status. If such a business implements a proof of vaccine policy where the employee is offered the alternative of leaving or of submitting to a unilateral and substantial alteration of a fundamental term or condition of his/her employment, this could be deemed a constructive dismissal and if you resign from your role as a result of this ultimatum, you may have a claim for damages resulting from wrongful dismissal. If you do not resign and the employer ultimately terminates your contract, it must be done as a termination without cause. In these cases, the employer must award you pay in lieu of notice, also known as severance. Nova Scotia Labour Standards outlines the statutory minimum you are entitled to based on your length of service. However, these are just the minimums and there is a body of precedent called common law , where in many cases, courts will award far more than the statutory minimum so be prepared to negotiate. You may need to get a copy of any employment contracts you signed upon hire as many include terms of severance that will be awarded in the event of a termination without cause. Providing these terms meet the minimum statutory requirements, you may not have a claim for more.

If an employee’s length of service was longer than ten years, and the reason for termination does not fall within a specified exception, then section 71(1) of the Labour Standards Code provides a form of “statutory tenure”. That is, the employer cannot terminate an employee without just cause, and the employee has a right to reinstatement. Federally regulated employees have the same just cause protection after one year of service.

The entire scope of this is whether termination due to vaccination status could be deemed just cause. It's the opinion of the NSCLA that it cannot be deemed just cause absent a Government mandate. Introducing a mandatory vaccination policy is a fundamental change to an employment contract that cannot unilaterally be imposed on an existing employee. Beyond that, an employee has the right to refuse work they have reasonable grounds to believe may cause them or someone else harm. There is already a large body of data outlining the risks of both serious and less serious adverse events from the currently available vaccines in NS. Beyond that, we have no understanding of any potential long term adverse events. As a result, it's a reasonable decision to decline a vaccine that has documented rates of serious adverse events far greater than any others currently on the market, such as influenza.

The website of Ontario law firm Samfiru-Tumarkin is an absolute wealth of knowledge on basically every conceivable subject or scenario relating to Covid, vaccines and employment law. They are based in Ontario, but the same principles will also apply in Nova Scotia. Have a scroll through their Covid page and you will very likely find some advice that applies to your personal situation.

You may also find some helpful advice in our recent post about employment law.