Howard Levitt: Get vaccinated or get fired — and seven other workplace struggles waiting for us in 2021

Tired of 2020 retrospectives? Here’s a 2021 prospective to assess what we have to look forward to in this new year.

Tired of 2020 retrospectives? Let’s do a 2021 prospective and assess what we have to look forward to in this new year.

1. A vaccine permitting the resumption of working from the office. Much will flow from that, including companies, less excited about the work-from-home arrangement than their staff, mandating a return to work. With 85 per cent of remote workers wishing to continue in that status according to Benefits Canada, there will be battles as employees refuse to return, claiming that they are just as productive from home.

The employers’ position has support. Although some employees may be as, or even more, productive when working remotely, Aternity’s Global Remote Work Productivity Tracker, showed that, on average, Canadian employees working from home were 21 per cent less productive per hour worked. Some remote workers may also have moved over the past year to destinations too remote for daily commutes, exacerbating the conflict further.

The law is that employers have the absolute right to require employees to return to the workplace, even if a particular employee could prove they were more productive remotely, and it is cause for discharge if the employee refuses. Other employees will plead they are worried about returning to the workplace. The argument bears limited cogency with vaccines poised for a mass-scale rollout. But even without the vaccine, the law accommodates safety, not employee anxiety. Unless they can prove their workplace is unsafe, staff must return to keep their jobs.

2. Some employers will provide employees with a choice. Return to work or continue to work remotely but with a 30 per cent cut in salary (or any amount the employer selects). If the employee has the option of coming to the office at the same remuneration, there is nothing illegal, nor is it a constructive dismissal for employers to offer this alternative.

3. A wave of permanently lost jobs. Employers who found little productivity loss due to work-from-home arrangements will seize that advantage and find the best worker for the lowest price, wherever they may be. Canadians’ jobs will be replaced by workers from lower wage environments. The remote-work lobby, not foreseeing any of this, will be in shambles. It’s not just I who have long predicted this, the Bank of England recently warned of the same.

4. The struggle over mandatory vaccination. Employers with vulnerable populations, such as hospitals and long-term care homes, can require their employees to vaccinate, or be dismissed. But once public health authorities formally recommend vaccinations, companies with employees who have to work in close proximity to co-workers, customers or others can be required to vaccinate or be fired. There is no freedom of conscience or privacy rights which precludes this, and arguments to the contrary are legally bunk.

5. New employment contracts will be required by employers. The main employment law trend of 2020 was a series of court cases demolishing the legal substrata of existing termination provisions and of other clauses preventing employees from obtaining benefits, pension vesting, commissions, bonuses etc., which would have accrued during the months following their dismissal. Employers, to reinstate their former rights, already are asking employees to sign new, enforceable contracts. Since employees need legally not sign those, it will create a tug of war throughout Canadian workplaces.

6. Employers stepping up to protect their image. Companies involved in brand-damaging conduct, even off duty, will be quickly excised from their ranks by upset employers. It started in 2020 with Steve Easterbrook, the CEO of McDonalds who was sacked for sexual relationships with subordinates, and others such as Yasmin Ratansi, a Liberal MP, kicked out of caucus by the Prime Minister for having her relative surreptitiously on payroll, and will gather more momentum in the coming year.

7. The backlash against political correctness. There will be a concomitant reaction to excessive political correctness which has descended from our campuses to our workplaces. Many employees and employers are sick of the ideological straitjacket it has created and that movement will lose its present impact.

8. The post-COVID accommodation. As employees become stricken with COVID-19 and its sometime long-term side effects, employers will be required to accommodate those disabilities. As a matter of law, employees must be provided adequate time to recover and workplace support while they do. But the side effects are still uncertain, and may create considerable workplace conflict with duelling medical evidence, in the same way that mental health once did.

Happy 2021 to you all.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Questions are edited for clarity and space.

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