Termination of Employment for Non-Compliance with Public Health Directions and Employer COVID Vaccination Policy

We previously discussed how to deal with early-stage non-compliance with Public Health Directions/ Orders or an Employer’s policy.Consistent with our Results with Respect approach, this involved a process of:

1. notification of requirements;

2. meetings to address concerns and working through reasonable accommodations;

3. reiterating or clarifying any amended requirements in writing;

4. setting out the consequences of failure; and then

5. providing a final opportunity to show why termination of employment should not occur if none of the above items can be adequately addressed.

But what do you do if you have exhausted all of the above options and you are still faced with non-compliance?

As a last resort we recommend that Employers consider proceeding to termination of employment.We understand that this is a difficult and emotive issue for all concerned.Advice should be taken on a case by case basis given the potential consequences.

The reality is that in the context of a Public Health Direction/Order there is very little ‘wriggle’ room.The Public Health Direction/ Order has statutory force and there are penalties for non-compliance.Various government agencies have somewhat ‘paved the way’ for private sector Employers for termination of employment considerations by publicly announcing such processes already commencing in their workplaces.

The situation is slightly different in the context of non-compliance with an Employer policy.The Employer has the ultimate decision and the options for reasonable accommodations are more generous.We recommend Employers to take a principled approach to any decision as any lack of consistency will ultimately undermine any response action.

All the usual risks apply whenever a termination of employment is considered. Employers should be particularly mindful of unfair dismissal, adverse action, discrimination, breach of contract and workers compensation claims.