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Companies are implementing vaccine mandates. Can employees reject them? – CBC.ca

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Federal and provincial governments, private businesses as well as Canada’s biggest banks have in recent weeks announced plans to implement mandatory vaccination policies for many of their returning staff. 

These vaccine mandates require their employees to be vaccinated against COVID-19. But do employers have the right to impose such mandates? What if employees refuse?

CBC News looks at the legal issues these mandates raise.

Do companies face legal hurdles in imposing vaccine mandates?

That will likely depend on the particular circumstances that an employer and employee find themselves in, says Toronto-based employment lawyer Alex Lucifero. And the law will differ, he says, based upon a number of factors — for example, the particular industry, or whether the employees are unionized.

“There’ll be a bunch of different factors that will be taken into consideration,” he said. “I imagine eventually there will potentially be different laws for different industries or groups of employees. For that reason, it makes it extremely complex and there is no ‘one size fits all’ answer.”

Employment lawyer Adam Savaglio, a partner with Scarfone Hawkins LLP in Hamilton, Ont. told CBC News that there are many misconceptions and incorrect assumptions about the law around vaccination mandates.

“They can’t necessarily compel, but they can certainly ask for evidence of vaccination because they have an underlying obligation to that worker and others in the workplace to provide a healthy and safe workplace,” he said in an interview.

However, Toronto-based employment lawyer Howard Levitt said that in Canadian law, safety always trumps privacy. That means employers will be permitted by the courts and arbitrators to have compulsory vaccination policies, except for religious and medical exemptions.

Can a company fire an employee who refuses to get vaccinated?

“I believe they have the rights as an employer to mandate it and to terminate people who won’t comply,” Levitt said.

Canada’s biggest banks will require employees who return to the office to be vaccinated or submit to regular testing. (CBC)

Lucifero said someone who refuses to adhere to an employer’s vaccine mandate because of a medical condition or religious belief cannot be fired because that would be considered discrimination under the human rights code.

“But the reality is that your employer can let you go because you haven’t been vaccinated. An employer can actually let you go for no particular reason at all. That’s what we call a ‘without cause’ termination,” he said.

Your employer doesn’t even need a reason to let you go as long as the proper amount of severance is paid.”

What about charter rights to protect me if I don’t want to be vaccinated?

What’s important for people to understand, says constitutional expert Wayne MacKay, professor emeritus of law at Dalhousie University, is that the Charter of Rights and Freedoms only applies to government action. That means, when it comes to vaccine mandates, the charter only applies for government workers refusing such a decree.

“It doesn’t apply to private businesses or [a] private individual’s actions,” he said. “Statute law does, privacy laws, human rights codes, those kind of things.  But only government action is restricted by the charter.

What charter rights might apply to vaccine mandates?

There are potentially at least three sections of the charter that could be used by a government employee to challenge a vaccine mandate, including Section 7 — the right to life, liberty and security of the person.

That could be cited to challenge “a policy that seems to coerce people into getting vaccinated,” wrote University of B.C. law professor Debra Parkes and University of Ottawa law professor Carissima Mathen in a recent editorial. 

However, Bryan Thomas, adjunct professor at the University of Ottawa’s Centre for Health Law, Policy & Ethics, says he  believes challenges under Section 7 are unlikely to be successful because that section doesn’t protect an individual’s economic interests or “your ability to retain a job.”

Section 15, which offers protection from discrimination, could also be invoked but Thomas says he believes it would fail as an argument because an employer is not actually discounting anyone’s interests.

WATCH | All kinds of employers grappling with vaccine mandates

Workplaces consider COVID-19 vaccine requirements

6 days ago

Some Canadian companies have imposed their own COVID-19 vaccine requirements on employees who want to return to the workplace, while others are hoping the federal government’s new mandate will be applied to them. But some employment lawyers say though vaccine mandates are legal, they’re not simple. 2:04

“[They’re] making up kind of this a legitimate form of discrimination and saying, you know, you unvaccinated person pose a great risk to yourself and to others by entering the workplace,” said Thomas.

Section 2A, the so-called religious exemption, or freedom of conscience, could also be applicable.

Parkes and Mathen wrote that this an underdeveloped area of charter law, but could be relevant “where a person has a sincerely held belief that the vaccination is harmful to their health or, in some other way, deeply wrong.”

But Thomas said someone who is vaccine hesitant, for example, couldn’t claim that’s a freedom of conscience issue.

“The courts have a more rigorous test or standard for conscience,” he said. “It has to be something that’s akin to a religion in your life.”

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Coronavirus: What's happening in Canada and around the world on Friday – CBC.ca

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The latest:

Surges in coronavirus cases in several U.S. states this week, along with staffing and equipment shortages, are exacting a mounting toll on hospitals and their workers even as the number of new admissions nationwide ebbs, leading to warnings at some facilities that care would be rationed.

Montana, Alaska, Ohio, Wisconsin and Kentucky experienced the biggest rises in new COVID-19 hospitalizations during the week ending Sept. 10 compared with the previous week, with Montana’s new hospitalizations rising by 26 per cent, according to the latest report by the U.S. Centers for Disease Control and Prevention (CDC) on Tuesday.

In Alaska, the influx is so heavy that the state’s largest hospital is no longer able to provide life-saving care to every patient who needs it, according to an open letter from the medical executive committee of Providence Alaska Medical Center this week.

“If you or your loved one need specialty care at Providence, such as a cardiologist, trauma surgeon, or a neurosurgeon, we sadly may not have room now,” the letter read. “There are no more staffed beds left.”

Women run past an exhibition of white flags representing Americans who have died of COVID-19, placed over 20 acres of the National Mall, in Washington, on Friday. (Joshua Roberts/Reuters)

Some hospital workers have become so overwhelmed by the fresh wave of COVID-19 cases — a year and half after the pandemic first reached the United States — that they have left for jobs at retailing and other non-medical fields, Nancy Foster, vice president of quality and patient safety the American Hospital Association, told Reuters.

At the same time, distribution and other issues are leaving some hospitals short of oxygen supplies desperately needed to help patients struggling to breathe, Foster said.

On Friday, the hospital association held a webinar for its members on how to conserve oxygen, an effort to address a 200 per cent jump in demand at many hospitals, she said.

“There is a shortage of drivers with the qualifications to transport oxygen, and a shortage of the tanks needed to transport it.”

While there are some breakthrough cases among the vaccinated, Foster said most of the hospitalizations were among the unvaccinated.

New hospital admissions are still surging in several mostly rural and Midwestern states, even as the number of COVID-19 patients admitted to hospitals daily in the entire United States slipped to about 10,685 on Tuesday after cresting around 13,028 in late August, according to the latest data from the CDC.


What’s happening across Canada

Calgary doctor worries about triage amid COVID-19 surge

2 days ago

Emergency room physician Dr. Joe Vipond says the crush of seriously ill people from COVID-19 may force doctors to make life or death decisions for patients. ‘We never wanted to be in this position,’ he said. (Nancy Walters/CBC) 1:09

  • Health authority, N.B. working to meet demand for COVID-19 tests amid surge in cases.
  • Outbreaks are ‘a weird moment’ for P.E.I. Here’s one expert’s advice on how to cope.
  • N.S. reports 18 new cases of COVID-19 on Friday.

What’s happening around the world

As of Friday afternoon, more than 227.4 million cases of COVID-19 had been reported worldwide, according to Johns Hopkins University’s coronavirus tracker. The reported global death toll stood at more than 4.6 million.

The British government announced a major simplification of its rules for international travel on Friday, heeding complaints from travellers and businesses that its regulations aimed at staving off the spread of COVID-19 were cumbersome and ineffective.

Testing requirements will be eased for fully vaccinated arrivals to England from open countries, who will no longer have to take a COVID-19 test before travelling. Travellers will still need a test after landing, but from the end of October an inexpensive lateral flow test will suffice, rather than a more sensitive — but pricier — polymerase chain reaction (PCR) test. The new rules apply to travellers from Canada.

In the Americas, an influential panel of expert outside advisers to the U.S. Food and Drug Administration voted against approving COVID-19 booster shots for all Americans, but endorsing them for those 65 and over and for those at high risk of severe disease.

The decision marked a huge step back from the sweeping plan proposed by the Biden administration a month ago to offer booster shots of both the Pfizer and Moderna vaccines to nearly all Americans eight months after they get their second dose.

In Asia, Cambodia is vaccinating children ages six to 11 so students can safely return to schools that have been closed for months due to the coronavirus. Prime Minister Hun Sen opened the campaign Friday, with his grandchildren and young family members of other senior officials getting their shots.

Children wait before they receive a shot of the Sinovac vaccine outside Phnom Penh, Cambodia, on Friday. Prime Minister Hun Sen announced the start of a nationwide campaign to give COVID-19 vaccinations to children between the ages of six and 11. (Heng Sinith/The Associated Press)

Cambodia already has been vaccinating older children, and Hun Sen says he ordered health officials to study if children ages three to five can be vaccinated. Nearly 72 per cent of Cambodia’s almost 17 million people have received at least one COVID-19 shot since vaccinations began in February. 

India gave a record 22.6 million vaccinations on Friday, three times the average daily total during the past month. The health minister called the vaccine milestone a birthday gift for Prime Minister Narendra Modi, who turned 71 and was criticized heavily for India’s dramatic rise in infections and deaths in April and May.

India’s previous vaccination peak of 14.1 million was reached on Aug. 31, with a daily average of seven million doses in the last 30 days.

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'Trudeau is bad for Canada,' Singh says as Liberal leader asks progressives to unite – CBC.ca

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NDP Leader Jagmeet Singh launched his most pointed attack yet on his Liberal opponent today, saying Justin Trudeau is a failed leader who is “bad for Canada.”

Trudeau, meanwhile, dismissed the NDP as an unserious option, saying the NDP has presented a vague plan to spend $200 billion more over the next five years while offering few details.

“We think Mr. Trudeau is bad for Canada because he’s failed on the crises and made things worse, not better,” Singh said, condemning Trudeau for voting against non-binding NDP motions on pharmacare and long-term care homes.

Singh also pointed to higher greenhouse gas emissions and a tax system he said is skewed toward the “ultra rich.”

“He is bad for Canada. He was an abject failure,” Singh said of Trudeau.

WATCH: Singh says ‘Mr. Trudeau is bad for Canada’

Jagmeet Singh: ‘Mr. Trudeau is bad for Canada…Mr. O’Toole is also bad for Canada’

8 hours ago

NDP Leader Jagmeet Singh says both Liberal Leader Justin Trudeau and Conservative Leader Erin O’Toole are “bad for Canada.” He was asked by reporters if there’s any party he would not work with if Monday’s vote elects a minority government. 0:41

With just three days left in the 44th general election, Singh and Trudeau are scrambling to shore up support among the progressive voters who could decide which party governs the country after Monday’s vote.

Trudeau wants a majority government. Singh, meanwhile, is trying to avoid a repeat of the last election — which saw NDP support crater, leading to a loss of 15 seats.

Trudeau said a vote for the NDP would amount to a vote for the Conservatives because vote-splitting could put Erin O’Toole in the Prime Minister’s Office. Singh said left-wing voters shouldn’t fall for Liberal pressure tactics.

“The Liberal Party is not only the only party that can stop the Conservatives, but we’re also the only party with a real plan to get things done,” Trudeau said, pointing to experts who have criticized the NDP’s climate plan as unrealistic.

“Progressives are quite rightly worried. I know there are a lot of people out there who are torn. You don’t have to make an impossible choice and vote strategically. You can actually vote for the party that is going to stop the Conservatives and move forward with the strongest plan to get things done.”

Trudeau prompted this election last month, saying the opposition parties have blocked the Liberal agenda by delaying government bills and disrupting the work of parliamentary committees.

 WATCH: A roundup of where the leaders were on Day 34 of the campaign

A roundup of where the leaders were on Day 34 of the campaign

3 hours ago

Green Party Leader Annamie Paul, Liberal Leader Justin Trudeau and Conservative Leader Erin O’Toole were all in Ontario. People’s Party Leader Maxime Bernier is headed to Alberta. Bloc Leader Yves-François Blanchet stayed in Quebec, while NDP Leader Jagmeet Singh toured Nova Scotia. 7:28

Since the election call, Trudeau has been asked over and over to explain why he’s sending Canadians to the polls during the fourth wave of the pandemic. The CBC Poll Tracker suggests some Liberal supporters soured on Trudeau after the campaign launch — and the majority government the party wanted may now be out of reach.

When asked Friday how he’d handle another minority government, Trudeau said he’s asking voters to return as many Liberal MPs as possible to prevent that outcome.

Singh dodged questions today about the concessions he’d try to extract from the next government in exchange for NDP support on confidence motions.

Singh said he hasn’t given this much thought because he’s running to be prime minister. Polls suggest the NDP will be hard pressed to do better than third place, let alone form a government.

Asked today why his campaign has failed to catch on with more voters, Singh said the election isn’t over.

“We’re working hard and the Liberals often take people’s votes for granted,” he said. “I’m always prepared to work hard.”

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U.S. senators push Biden to lift border closure with Canada – CBC.ca

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Four U.S. senators on Friday asked President Joe Biden to lift restrictions that have barred travel by Canadians across the northern U.S. border since March 2020.

Democratic Sens. Jeanne Shaheen and Maggie Hassan of New Hampshire, Jon Tester of Montana and independent Angus King of Maine asked Biden to allow Canadians vaccinated against COVID-19 to travel to the United States before October.

The border state senators said in a letter the restrictions have led to “economic and emotional strain in our communities.”

The senators added: “A plan with some indication of when your administration would feel comfortable lifting border restrictions based on public health data would provide clarity to businesses and families along the northern border.”

They also noted that Canadians can fly to the United States. “We struggle to understand the public health rationale for the disparate treatment in modes of travel,” the senators wrote.

The White House did not immediately comment on Friday, but White House coronavirus response co-ordinator Jeff Zients said on Wednesday that given the delta variant of the coronavirus, “we will maintain the existing travel restrictions at this point.”

U.S. officials and travel industry executives say the White House is set to renew the restrictions before the latest extension expires on Sept. 21.

In August, the United States again extended restrictions closing its land borders with Canada and Mexico to nonessential travel such as tourism despite Ottawa’s decision to open its border to vaccinated Americans. Canada on Aug. 9 began allowing fully vaccinated U.S. visitors for non-essential travel.

The United States has continued to extend the extraordinary restrictions on Canada and Mexico on a monthly basis since March 2020, when they were imposed to address the spread of COVID-19. The U.S. land border restrictions do not bar U.S. citizens from returning home.

The United States separately bars most non-U.S. citizens who within the last 14 days have been in the United Kingdom, the 26 Schengen countries in Europe without border controls, Ireland, China, India, South Africa, Iran and Brazil.

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