The COVID era has brought with it not only questions around consumer behavioural changes and retail strategy deep dives but also raised many, many new questions around labour practices and labour law. Can I mandate COVID testing in the workplace, what must I accommodate, can I field a mandatory employee survey and the big one, can I require vaccines in my business.
Welcome to the The Voice of Retail , I’m your host Michael LeBlanc, and this podcast is brought to you in conjunction with Retail Council of Canada.
The COVID era has brought with it not only questions around consumer behavioural changes and retail strategy deep dives but also raised many, many new questions around labour practices and labour law. Can I mandate COVID testing in the workplace, what must I accommodate, can I field a mandatory employee survey and the big one, can I require vaccines in my business.
Joseph Cohen-Lyons is a lawyer in the employment and labour law group with Norton Rose Fulbright, a global law firm with more than 3,700 lawyers and other legal staff based in Europe, the United States, Canada, Latin America, Asia, Australia, the Middle East and Africa.
In this exclusive interview, Joseph and I discuss the state of labour law in the COVID era and try to answer the tough questions you all have regarding labour law at an unprecedented time.
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I’m your host Michael LeBlanc, President of M.E. LeBlanc & Company, and if you’re looking for more content, or want to chat follow me on LinkedIn, or visit my website meleblanc.co!
Until next time, stay safe and have a great week!
https://www.nortonrosefulbright.com/en/knowledge/publications/2eb4cfc3/return-to-the-workplace
https://www.nortonrosefulbright.com/en/people/139430
Michael LeBlanc is the Founder & President of M.E. LeBlanc & Company Inc and a Senior Advisor to Retail Council of Canada as part of his advisory and consulting practice. He brings 25+ years of brand/retail/marketing & eCommerce leadership experience, and has been on the front lines of retail industry change for his entire career. Michael is the producer and host of a network of leading podcasts including Canada’s top retail industry podcast, The Voice of Retail, plus Global E-Commerce Tech Talks and The Food Professor with Dr. Sylvain Charlebois. You can learn more about Michael here or on LinkedIn.
Michael LeBlanc 00:04
Welcome to the Voice of Retail, I’m your host Michael LeBlanc, and this podcast is brought to you in conjunction with Retail Council of Canada.
Michael LeBlanc 00:10
The COVID era is brought with it not only questions around consumer behavioral changes and retail strategy, deep dives, but also raised many, many new questions around labor practices and labor law. Can I mandate COVID testing in the workplace, what must I accommodate, can I field a mandatory employee survey and the big one, can I require vaccines in my business.
Michael LeBlanc 00:30
Joseph Cohen-Lyons is a lawyer in the employment and labor law group with Norton Rose Fulbright, a global law firm with more than 3700 lawyers and other legal staff based in Europe, United States, Canada, Latin America, Asia, Australia, the Middle East, and Africa.
Michael LeBlanc 00:44
In this exclusive interview, Joseph and I discuss the state of labor law in the COVID era and try to answer the tough questions you all have regarding labor law at an unprecedented time.
Joseph Cohen-Lyons 00:54
And essentially, what the Human Rights Commission said was that an object-, a personal objection to vaccines how, however strong it may be, is not a religious belief, essentially, to put it in simple terms.
Michael LeBlanc 01:06
Right, notwithstanding the fervor that some anti-vaxxers have,
Joseph Cohen-Lyons 01:09
Notwithstanding the fervor. That’s funny.
Michael LeBlanc 01:09
which is near, near religious experiences.
Michael LeBlanc 01:13
Let's listen in now.
Michael LeBlanc 01:15
Joseph, welcome to The Voice of Retail podcast. How are you doing this morning?
Joseph Cohen-Lyons 01:19
Good, Michael. Thanks for having me. How are you?
Michael LeBlanc 01:21
I'm well, thanks. Thanks so much for joining me, you and I met virtually, so to speak on Retail Council of Canada, live stream, the Wednesday night live stream and your topic was, was so interesting, and is so interesting, and you have such a depth of experience. And I'm thrilled you agreed to join me here on the podcast. So again, welcome.
Joseph Cohen-Lyons 01:41
Well, very happy to be here, Michael. Thanks.
Michael LeBlanc 01:44
All right. Well, let's jump right in. Tell us about yourself, what you, what your background is, what's your area of practice and the firm that you work for?
Joseph Cohen-Lyons 01:52
All right, so I am a management side labor and employment lawyer. Essentially what that means is I represent companies of all sizes, really, with anything that has to do with the workplace. So, anything that involves the employment relationship, or the management of employees, that's something that I would help a company, or an employer navigate I'm currently working at, or I work at a firm called Norton Rose Fulbright, Canada. It's a large full-service firm. I'm in the Toronto office. We have offices all over Canada, and really Norton Rose is, has, Norton Rose Fulbright has offices across the world. I'm in their labor and employment group and in the Toronto office. Prior to that, prior to joining Norton Rose, I actually was in house at a large automotive manufacturer where I was there in house labor and employment counsel, and did help them navigate partially through this, the pandemic. So, I have some experience in terms of what we'll be talking about today, from the in-house role. And then prior to going in house, I was at another large labor and employment firm for about eight years. So, I've been doing this for, all told, about 11 or 12 years, and always exclusively management side Labor and Employment Law.
Michael LeBlanc 03:10
Now, how did you come to that, were you, you know, when you were a kid in the sandbox, were you saying, were you adjudicating in the sandbox? Tell me about you, tell me about your focus.
Joseph Cohen-Lyons 03:18
No, no. No, no, believe it or not like everyone else, I didn't grow up wanting to be a lawyer. I wanted to be a hockey player or a fireman or something, something a bit more normal. But yeah, I mean, I think I was growing up going to high school. And then at university, I became a bit more realistic with my expectations, and my sights and I was always interested in law, politics, humanities and stuff like that. So, law school was a natural choice in terms of getting into labor and employment law. Like I can't say, again, that I was born wanting to practice labor and employment law, but I fell into it because I, you know, I went to law school, knowing that I sort of wanted to be up on my feet and arguing cases and stuff like that, not just sort of in in an office looking at contracts, although I do quite a bit of that, as well as sort of being up on my feet.
Michael LeBlanc 04:05
Yeah, yeah.
Joseph Cohen-Lyons 04:06
But so I spent some time, actually, went to Queen's University in Ontario, and I did some work in the penitentiaries there where I was representing federal inmates and doing quasi-criminal law. And it just wasn't for me, I just didn't like the subject matter. So, I had to think of some area where I could practice my advocacy skills. So, getting up on my feet, but that wasn't criminal law. And I knew I didn't want to do family law. So Labor and Employment Law is sort of a natural choice for someone that wants to do that. And yeah, so that's how I fell into it.
Michael LeBlanc 04:40
Whether you fell into it or certainly by intensive focus. It's an interesting place to be right now in the legal profession. And I guess many firms would have, kind of, plans around you know, edge case events like pandemics but really not.
Joseph Cohen-Lyons 04:57
Right.
Michael LeBlanc 04:57
And, you know, we can imagine certain In this scenario, certainly if you're in, we're here in Ontario, we've had some brushes with, with pandemics but nothing like this. By the way, when you speak, do you represent in the province of Ontario or across Canada, what, do you have any, any parameters around that, or is this Canada wide, or are you more familiar with one than the other?
Joseph Cohen-Lyons 05:18
Well, I'm certainly more familiar with Ontario. I practice in Ontario; I'm licensed to practice only in Ontario. In Canada, what that means is that I can give legal advice on the other, on legal issues in other provinces other than Quebec, so I'm not ethically or legally able to give legal advice on things that happened in Quebec. But with respect to the other provinces, yes, and I certainly have given the national nature of our practice at Norton Rose, I certainly have quite a bit of experience, advising on issues in other provinces and also with respect to these rapidly changing COVID issues.
Michael LeBlanc 05:58
And how much does it matter from a regulatory perspective, or from the work you do, the province that you're in, I know, there's certainly differences, of course, Quebec, but is there is it, kind of, like a tier one, a lot of the same principles but when you get down to a certain level, then it varies based on the province and their various regulations, like how granular, is that a good assessment?
Joseph Cohen-Lyons 06:20
That is a good assessment. So, a lot of the general principles, certainly amongst the common law provinces of those or every province, other than Quebec are very similar across the board. But the, the devils in the details, and there definitely are some different regulatory issues that, that differ from province to province, and some of which I think we maybe will talk a bit about today when it comes to vaccines.
Michael LeBlanc 06:43
Yeah.
Joseph Cohen-Lyons 06:44
And some of the sort of nuts-and-bolts rules about, with respect to COVID protocols would differ from province to province, like the fine details, but the general principles of employment law are pretty similar across the board.
Michael LeBlanc 06:58
Right. Right. So, all right, so we're, what, 18 months now into the COVID era. And I can think of different phases, from your perspective, as we all tried to figure this out, can people go home, and do I have to lay them off, are they laid off, is that constructive dismissal if you're working from home, and if people are working from home and they tripped over their cat, is that a problem working for me. Tell me the, you know, to start this journey, tell me that it, kind of, the top, you know, three or five issues that have, that have come up as part of the COVID era in, in labor law. And I guess where I'm pointed with this, you know, we'll talk you know, time of the time is of the essence, we're now into this mandatory vaccination questions, we're into vaccine passports. But take me back a little bit in terms of how it's evolved, the different types of questions and different types of issues that you've looked at over the past 18 months.
Joseph Cohen-Lyons 07:50
Right. So, I mean, you're totally right. It's certainly evolved over the last 18 months, and I can't believe it's been 18 months. But, but here we are. And yeah, you're right. At the very beginning, it was the questions we were fielding were more around the lines of, okay, we literally have to shut down our business we have, we can't let employees in or things have grind-, ground to a halt. What do we do with our employees, can we lay them off, if we do as a constructive dismissal? And, you know, this, isn't it, this always has been an area of law where the, the general principles of the common law or of the law were not I would say, aren't particularly well understood by your average citizen or business owner. And a quick Google search can sort of send you down the wrong road. So, it's easy to, to think, for a lot of the Employment Standards legislation in the various provinces allow, or have this concept called a temporary layoff.
Joseph Cohen-Lyons 08:53
And a lot of employers when this all started, were surprised to hear that even though there is that concept in these, in these Employment Standards, legislation, a temporary layoff can still amount to a termination, really, it's under the principle of constructive dismissal. So, we were delivering a lot of unwelcome news, I think, to employers who are finding out that, look that there is a risk when you're laying off employees now, it was a difficult time. And it remains a difficult time because admittedly, the principles of what I'm talking about, about the general principles of, of employment law and with respect to constructive dismissals, and layoffs where we're just not designed to deal with the situation. Like what happened with COVID where all of a sudden you actually had about 80% of people. I mean, I don't know if you remember those days in March of 2020 or April,
Michael LeBlanc 09:45
I do, I do, It’s crazy.
Joseph Cohen-Lyons 09:46
but, you know, they're, the streets were empty. Nobody was going to work, and you know, so, so, we were faced with the position where it was okay, our 80% of the people in the province or the country had just been constructively terminated. And do they all have rights and seven? So, you know, we were working through those issues. And we continue to because there's, you know, still some impact on that. And there's various statutory schemes in the various provinces that have, that have been introduced to address that. And, you know, the relationship between those and the common law that I was just talking about, it's not particularly clear. So, I think that'll continue to be an issue.
Michael LeBlanc 10:22
You know, one thing, one thing if I could, we've mentioned that you and I have mentioned it a couple of times constructive dismissal, but let's not assume everyone understands, explain for the listeners, and constructive dismissal at a high level, just so we have to make sure everybody, everybody knows what we're talking about.
Joseph Cohen-Lyons 10:39
Okay, so constructive dismissal is this principle that, well, to back up, generally speaking, an employer has the right to set the terms and conditions of employment for their employees. But there's a principle that if the, if an employer makes a unilateral change to those terms, and conditions that are so significant, significant, or that is so significant, that it amounts to essentially a repudiation of the employment agreement, then a court will treat that as a termination. So, essentially the same thing as if they had gone and terminated the employment relationship. And in that context, an employee would and you know, there's some nuances here but generally be able to sue and, and would be entitled to the same damages he or she would have been entitled to had he or she been terminated without cause.
Michael LeBlanc 11:33
And that order of magnitude of change is that, that's developed less by regulation more by case law, is that a fair assessment?
Joseph Cohen-Lyons 11:40
it's developed, I would say, entirely by, by case law. So, usually, well we often see this in the context of salary reduction or a change of duties, and you know, there's some general principles, but generally speaking, it has to be a pretty significant change to amount to a constructive dismissal. But there's a line of case law. And I think important for our purposes, there's a line of case law that says, well, it's an implied, right, or it's an implied term of an employment agreement that an employer will provide work for the employee to do, and that the employer will pay the employee for the work that they do. So, temporary, temporarily laying someone off is a breach of that implied term and is found to be a fundamental breach. And so essentially, absent of clear contractual provision, allowing a temporary layoff can amount, can be the same thing as terminating someone. So, essentially, and this is an area that is often misunderstood because, again, with these Employment Standards legislation that talks about temporary layoffs, but unless you have a contractual provision that allows you to do it, it doesn't matter what the Employment Standards legislation says it can amount to a constructive dismissal. That's why at the beginning of the pandemic, and throughout when companies were laying people off, we caution them about the risk that the layoff could be considered a constructive dismissal. And it would be in effect the same thing as terminating the individual.
Michael LeBlanc 13:09
And I guess that's where this concept of furlough came up furloughing employees, or am I just playing with words, is it one in the same?
Joseph Cohen-Lyons 13:18
It's one in the same. I think a furlough is a common term used, usually more commonly, I think in the US, but in Canada as well, that essentially means a temporary layoff.
Michael LeBlanc 13:28
Right, it's a nicer word, I guess, felt little better,
Joseph Cohen-Lyons 13:31
Yeah, a little, a little bit.
Michael LeBlanc 13:32
But from your perspective, from the, from the, from the court’s perspective, they're, they're indistinguishable?
Joseph Cohen-Lyons 13:37
That's correct. Yeah.
Michael LeBlanc 13:38
Okay. All right. So we've got at the beginning, the pandemic, we had a lot of layoff, some confusions about layoff, we had this big context of the world, kind of, in an apocalyptic state. what came next, bringing people back, what was the next thing you can?
Joseph Cohen-Lyons 13:50
Well, I think it's always been because there, there's always been, I think your listeners will appreciate this, there's, even though a lot of people began working from home, there's many industries that stayed in the physical workplace, I mean, you have manufacturing, warehousing facilities, a lot of retail operation.
Michael LeBlanc 14:07
Yeah.
Joseph Cohen-Lyons 14:07
So, the question was, and continues to be Health & Safety. So, how, what protocols Do we need to have in place to best prevent the spread of COVID-19 in the workplace and protect the workers, what, what can we ask employees to do, and this goes on to the vaccine issue, which I'll talk about separately, but what can we ask employees to do, what do we need to ask employees to do and what are sort of our risks and obligations in that from the health and, health and safety perspective and it's funny I you know, I I'm a lawyer, but all of a sudden and I think a lot of people are finding this but you know, I became an, I tried to become an expert in biology and how does this thing spread.
Joseph Cohen-Lyons 14:51
*What's gonna be affective, and what's out and certainly not what I was expecting when I, when I went to law school, but.
Michael LeBlanc 14:56
I know more than I ever want, really wanted to know about all this stuff.
Joseph Cohen-Lyons 14:59
Right, right, exactly
Michael LeBlanc 15:01
Let's talk for a minute about obligation. So, you know, employee, employers have a broad-based obligation to provide a safe workplace. And there's a lot of different dimensions to that. And they also have an obligation to provide accommodations for people who, one way shape or another, can't fit or can't adjust to that. So, speak to the, I guess that was, you know, what does a safe workplace look like, and is that evolving, and then what, kind of, what does an accommodation look like, because I guess this all, kind of, ladders up to what retailers asked me all the time. And they're asking, I'm sure, asking you, and your industry is like, okay, let's, we'll get to it. But you know, everything from testing to vaccinations and mandatory vaccines, but let's start at this safe workplace and this accommodation concepts.
Joseph Cohen-Lyons 15:46
Right. So, you're right, there's, in most provinces, there's a general duty on employers to provide, to take reasonable steps to provide healthy and safe workplace for their workers. So, the obligations on employers with respect to COVID, and these protocols really arise under this general duty, there's not, and there are, there are specific requirements that I'm sure your listeners are familiar with, that have been involved throughout the pandemic, but the bulk of it really is under this general duty clause. So, you know, really it's, it is a bit of a moving target and it's about following the, the guidelines and recommendations that really are have been published throughout by the, the various provincial Ministry of Labor, Ministry of Health organizations, that have
Michael LeBlanc 16:35
Occupancy, space, distance, plexiglass. Good to be a plexiglass salesman and 2020, right?
Joseph Cohen-Lyons 16:41
Right. Exactly, exactly. So, there are, there are some pretty good guidelines out there. And I think from an employer's perspective, the best thing to do is familiarize yourself with those guidelines and implement them in your workplace, to the extent that it's reasonable. Now, that being said, there are, there have been and continue to be specific regulation. So, for instance, in Ontario, there was for a period of time a requirement that if someone could work from home, they had to work from home. So, that was not just a general duty, okay, what, what do we need to do to provide for health and safety work, like that was a specific requirement. So, those do exist. And, again, they change from time, from, sometimes from day to day, and minute to minute, but, but there are some specific requirements that need to be met with respect to also social distancing, and occupancy rates as well. With respect to the duty to accommodate this is a duty that exists for employers and businesses, independent of the pandemic.
Michael LeBlanc 17:51
Sure.
Joseph Cohen-Lyons 17:51
I think it certainly come, come up in the context of the pandemic, in terms of, for instance, if there's a requirement to wear masks in the workplace, and some, somebody can't medically tolerate that mask, what do you need to do to provide an appropriate accommodation for that person.
Michael LeBlanc 18:03
Right.
Joseph Cohen-Lyons 18:05
The same thing, and I think we'll probably want to talk about this in a separate topic. But certainly, with respect to vaccines, there's been a lot of talk about the right to be accommodated with respect to mandatory vaccines, and whether there's, there's a duty to do that. I think we could talk about that separately when we talk about vaccines. But you're right, an employer in implementing whatever health and safety measures are most effective does have to take into account the rights of employees with respect to the duty to accommodate but it's important to note that there's not a free standing right, of individuals and people to just be accommodated for their preferences and likes and dislikes. There's all, the duty to accommodate is only triggered where some human rights ground is engaged. So, you only have a duty to accommodate someone's need arising from a legitimate human rights ground, so I think most commonly it would be a disability. So, someone suffers from some disability that doesn't allow them to, to engage in a certain practice or to do something and what, what do you need to do to accommodate that, but someone just saying I don't like masks is not likely to trigger a duty to accommodate.
Michael LeBlanc 19:29
Well, this has been a build up to the questions that we're getting today. So, let's get there. So, let's, it feels like we should talk about this to, kind of, two things. One is, is mandating things like testing, and retailers because we're speaking to the retailer audience and of course, he had three constituencies, we have had office staff, we have frontline staff, and then we have a warehouse staff just to speak broadly about three, because I like things in threes. But let's, putting even that aside, so, I would like to make sure, let's imagine our world where the vaccines are not widely distributed and then we get to where they are.
Joseph Cohen-Lyons 20:02
Right.
Michael LeBlanc 20:02
I'd like everyone to be tested before they go to work. Is that an okay, ask on behalf of, can they, can they say, ‘Listen, you can't go work in that warehouse, you can't go into my store, unless you're tested’. Is that a reasonable thing, what's been your experience and where are we landing on that one?
Joseph Cohen-Lyons 20:21
Yeah, I think the answer that is broadly, yes. I think people were a bit more concerned at the beginning of the pandemic. But now it's, I think, relatively safe to say that an employer can, and in many cases should implement a mandatory testing policy. But again, I think that that would need to be subject to the duty to accommodate. And, I think with respect to, to testing you, there, there might be some legitimate medical reasons why someone couldn't, couldn't engage in testing, or you might need to provide some accommodation in terms of the manner in which testing is done. But generally speaking, I think you can implement that, that policy and a lot of employers have.
Michael LeBlanc 21:04
Now, where does this, if at all, intersect with the privacy around health information? Obviously, I guess it supersedes it, or doesn't touch it, I now know something about you now that you've taken this test. How does that
Joseph Cohen-Lyons 21:17
You're right, it does, you're right, it does intersect with it quite a bit. And I think as a general principle, employers, businesses, whomever is collecting this information is, is, you know, best suited to treat it with the respect it deserves. So, you know, take care to ensure that you only gather as much information as you need,
Michael LeBlanc 21:38
Right.
Joseph Cohen-Lyons 21:38
That it's kept in a secure way and the like, but surprisingly enough, in many jurisdictions, in Canada, there is no legislation that governs the collection of this type of information, and this is something that I think the common public is a bit surprised by. So, in Ontario, for instance, there's no private sector privacy legislation. So, there's no legislation that really governs an employer gathering information, personal information, including healthcare information, except in limited instances, but from their employees. Now, that being said, there's some common law duties that you need to consider. And then there's just the general best practice employee relations issues that you want to consider but that's different. There are provinces in Canada and just off the top of my head, Alberta, British Columbia, and Quebec, which again, I can't speak too much about Quebec, but those provinces do have specific privacy legislation. So, certainly, you need to ensure that whatever information you're collecting, whether it's about testing, or vaccines, as I'm sure we'll talk about, is kept in accordance with those statutory requirements.
Michael LeBlanc 22:51
Okay, the next level, I want to ask everyone if they've been vaccinated or not. Can retailers do that, a mandatory survey you must fill it out and your thoughts on that?
Joseph Cohen-Lyons 23:06
Right, the answer is probably yes. And well, the I guess the question is, who are they asking if it's their employees,
Michael LeBlanc 23:15
Yeah.
Joseph Cohen-Lyons 23:15
The answer is probably yes, and I think a lot of retailers and other businesses are routinely asking about vaccination status. I think people were a bit hesitant. If you talk to me about a month ago, I would say it wasn't quite as common. And I think now it's pretty common. So, yeah, the answer is yes. You can I think there are different considerations would apply if they're asking the public for that information to
Michael LeBlanc 23:41
Right, right.
Joseph Cohen-Lyons 23:41
To come into an establishment. And of course, we know in Ontario, at least, just yesterday, they, we had the first day of this vaccine passport. So, in certain cases, a retail, you know, business, maybe not retail.
Michael LeBlanc 23:59
Fortunately not retail, not retail, but
Joseph Cohen-Lyons 24:01
No, no, not yet, but some businesses are required.
Michael LeBlanc 24:02
Yeah, yeah, yeah. Right.
Joseph Cohen-Lyons 24:04
To ask about this information that may evolve over time. So, I do think that it's permissible and another point, I think, for your listeners, the Ontario Human Rights Commission actually just published a report yesterday, coincident with the vaccine passport coming out in Ontario that essentially endorsed the practice of asking about vaccination status and mandating vaccines in appropriate circumstances and essentially said that as long as it is done in compliance with applicable human rights considerations, which namely the duty to accommodate a disability, which is a little bit more narrow than people may think, then, then it's permissible, so.
Michael LeBlanc 24:52
To be clear on that, the fact that I just don't want to do it, is not, does not bring rise to an accommodation just because I don't want to do something if there's got to be more meat to that bone, so to speak.
Joseph Cohen-Lyons 25:03
Well, that's right. So, in this publication from the Ontario Human Rights Commission, which, I stress, is not law, it's a government body that expresses their view of the law. And I'm sure there will
Michael LeBlanc 25:14
Its an opinion. It's not law, it's opinion.
Joseph Cohen-Lyons 25:15
It's an opinion, but it, it's
Michael LeBlanc 25:17
Carries weight.
Joseph Cohen-Lyons 25:18
It tends to carry a bit of weight. And I think it's a good signal of where the issue may go. They specifically addressed this issue of not, you know, just a personal decision not to be vaccinated or even a personal belief that, you know, I think that people have some strong beliefs about the vaccine. And essentially, they said that those are not protected by the human rights legislation in Ontario. So, basically they're, what they're saying is that it's not. So, the Human Rights Code in Ontario protects you on the basis of religion or what they call creed and essentially, what the Human Rights Commission said was that an object-, a personal objection to vaccines, however strong it may be, is not a religious belief, essentially, to put it in simple terms,
Michael LeBlanc 26:05
Right, notwithstanding the fervor that some anti-vaxxers have,
Joseph Cohen-Lyons 26:08
Notwithstanding the fervor. That’s funny.
Michael LeBlanc 26:08
which is somewhere near religious experiences. All right, so let's get
Joseph Cohen-Lyons 26:14
That being said. Sorry, before we go on, I do anticipate someone trying to challenge that and trying to link and I've just in my own review of the stuff that's being out there, I do anticipate someone trying to say that they have a reasonably held and honestly held religious belief that they can't be vaccinated and to link it to a real existing religion. So, I think Well, we'll see that.
Michael LeBlanc 26:40
Yeah. There's some precedent for that, and blood transfusions and other things, right.
Joseph Cohen-Lyons 26:43
Right, right, exactly.
Michael LeBlanc 26:44
That's not unheard of. Okay, so the question that many retailers are asking me, and now when I speak of retailers, of course, it's not one large homogeneous group, we have pharmacies, or we have lumber retailers. So, I want to, as a retailer, and let's say, I'm not a pharmacy retailer, I want a mandate, anyone who works in my store or my warehouse or in the head office, needs to be vaccinated or you can't come to work, and what kind of ground are people on?
Joseph Cohen-Lyons 27:14
Right, so the general consensus is, and I think there's some differing views, but essentially, that an employer can mandate vaccines for employees to come to work, to report to their work.
Michael LeBlanc 27:28
They can.
Joseph Cohen-Lyons 27:28
They can. Yes. So, as I said, it's mandating the va-, and this goes to what the Human Rights Commission had said, but requiring the vaccine
Michael LeBlanc 27:37
That's new, I'm surprised at your answer a little bit because, you know, you're, you, it's not what I thought your answer would be. I thought your answer would be no, you can't mandate someone get vaccinated, you have to accommodate it
Joseph Cohen-Lyons 27:48
Well.
Michael LeBlanc 27:49
but your
Joseph Cohen-Lyons 27:49
But, accommodate what so the you do have to accommodate someone if they're unable to be vaccinated because of a legitimate medical
Michael LeBlanc 27:58
allergic to, yeah.
Joseph Cohen-Lyons 27:59
Yeah, you're allergic to the vaccine, you, there's, I think it's mild carditis, like you experienced that on your first vaccine. So, there are legitimate exemptions. But
Michael LeBlanc 28:09
Yeah.
Joseph Cohen-Lyons 28:11
Just requiring someone to be, there's no cause of action for requiring someone to be vaccinated. I mean, they don't have to be vaccinated and if they felt like you're forcing them to be if they don't want to, then they don't have to come to work, or they don't have to work for you. But I don't think that
Michael LeBlanc 28:27
And that doesn't that doesn't trigger constructive dismissal?
Joseph Cohen-Lyons 28:29
Well, this is where I think the cases are going to come out. So, I do think that an employer can say, we require you to be vaccinated to come into work. I don't think that saying that, in and of itself will give rise to an ability for an employee to sue and say, you made me get vaccinated, I'm suing you, but the real question is going to be what if someone, and I think we'll see cases on, on
Michael LeBlanc 28:54
Yeah, yeah.
Joseph Cohen-Lyons 28:54
For sure. But what if someone says no.
Michael LeBlanc 28:57
Right.
Joseph Cohen-Lyons 28:57
Generally speaking, I think in most circumstances, you probably will have to find an alternative or terminate them without cause. So, pay them some form of severance pay whatever they may be required, entitled to under either their contract or, or common lodge. I mean, that could be a whole other topic. But
Michael LeBlanc 29:18
Yeah. Yeah, yeah, yeah.
Joseph Cohen-Lyons 29:19
I don't think that, so I think that you could terminate them without cause I, in certain circumstances in certain contexts, it may be grounds to terminate with cause, but I think that would be a factually specific inquiry. And each case would, would differ but you know, in healthcare settings, or the types of environment you can,
Michael LeBlanc 29:41
No, I see I see,
Joseph Cohen-Lyons 29:42
You can think it might be cause to terminate.
Michael LeBlanc 29:45
So, there's an option to say and then I'll just play this tape back because I so we can be clear for the audience that I want to mandate, anyone who comes into my, works for me, comes in the store, warehouse or head office, if you're going to come to work, you need to be vaccinated. And, you know, if you work in a, you know, and if you, can't find an accommodation, you know, you can't do your job. If you're a clerk from home. You're, you know, I'm going to terminate you without cause, basically,
Joseph Cohen-Lyons 30:14
Right, right.
Michael LeBlanc 30:14
Maybe I'm a pharm-, maybe I'm a pharmacy and maybe, again, maybe there's, there's a, there's a with cause there, but that's, but that's where it sits today. And, and, but there, of course, there's the risk that someone is going to start taking that to court and testing that principle, right.
Joseph Cohen-Lyons 30:29
Right.
Michael LeBlanc 30:29
I mean, this is the way the system works. I guess at this point really.
Joseph Cohen-Lyons 30:32
Absolutely, and for what it's worth, I think that employers are going to test it as well and try to terminate for cause. And I think we're going to see whether a refusal to be vaccinated, which really, if you think about it is no different than a refusal, I mean, you could say it's a refusal to obey a workplace rule like what if someone refuses to wear a hard hat
Michael LeBlanc 30:53
Sure, yeah.
Joseph Cohen-Lyons 30:53
at your construction site, you probably could terminate them for cause. So, I think that there's going to be litigation about this and where it lands, we'll see. There's, this is certainly an uncharted territory and it's unprecedented.
Michael LeBlanc 31:08
Yeah, yeah.
Joseph Cohen-Lyons 31:08
So, there's no, there are no clear answers to this. There’re only our best guesses based on the general principles of employment law and past cases, right. And because we haven't dealt with a global pandemic, and any sort of anything, even that close to the mandatory vaccinations, although there are some cases about flu vaccines in the healthcare settings that are not particularly helpful for the current situation we're in but, you know, this is all to be decided.
Michael LeBlanc 31:42
Interesting. So, I guess, as always, in some things, I shouldn't say as it always, but it often comes down to your tolerance for risk as managers.
Joseph Cohen-Lyons 31:49
Absolutely
Michael LeBlanc 31:49
Right, I mean, particularly in this case, because there's, there's no black letter law on this. There's no case law. So, it's about to be, I guess, it's about to be developed as time goes past. So, last question for you've been very generous with your time and thank you. And again, for anyone listening, I'm sure you would, you would join me in saying, listen, you know, make sure and, you know, you live you're in different provinces, these things are complex, make sure and, you know, measure twice, cut once perhaps check with your own lawyer, and, you know, gets me to my last question is, is if they want to follow up with this, with you, your firm, and perhaps they don't have a council that that has this level of expertise, how would they get in touch with you?
Joseph Cohen-Lyons 32:33
Well, they can email me, call me, look me up online. It's Joseph Cohen Lyons, I'm at Norton Rose Fulbright Canada. So, I think it's fairly easily accessible. I think if you go on our firm's website, there are some great resources about return to work, COVID, you know, employment law in the COVID era, and other business issues in the COVID era. So, there's great resources on our firm's site. I thank you, Michael, because I should give the disclaimer that nothing I said today, obviously, constitutes any legal advice. Everything depends on the facts of, you know, the individual facts of the case. And when you're talking about these particular issues, the law is not particularly clear. So, you're right. It's about your tolerance for risk. And I would encourage anyone listening that has any questions either reach out to me or their regular employment lawyer for guidance.
Michael LeBlanc 33:31
and you would have, if they reached out to you, and perhaps they had businesses, as many of our retailers do in Quebec, you would have resource you can point them to within your firm.
Joseph Cohen-Lyons 33:40
Right, right. Yeah, we have,
Michael LeBlanc 33:41
as well. Right.
Joseph Cohen-Lyons 33:42
Right, right. So, we have a large office in Montreal, I think our firm, actually, we have a very large office in Montreal and in Quebec, so plenty of very competent colleagues out there.
Michael LeBlanc 33:55
Right on, right on. So, one call to you and you, you may, you may say, listen, that's not, that's not, I have less expertise in this part of the country. But here's my colleague who has tremendous depth of expertise. So, it's really one call and I'll put all these links, your email address and the link to the firm in the show notes. Just in case they can't find it but Google ensures it is your friend and when it comes down to online.
Joseph Cohen-Lyons 34:17
Right, exactly.
Michael LeBlanc 34:18
Let's, well, listen, this has been so generous, such, so topical, questions asked every day. I know many retailers were looking forward to this podcast, I know they've started to answer the questions and, and you've provided some guidance. But again, thanks again for joining me on The Voice of Retail. It is wonderful to chat with you at further length and, and maybe we'll get you back later in, in the year or early next year and see how these things are evolving and what's next because there's going to be an next.
Joseph Cohen-Lyons 34:46
That's right, Michael.
Michael LeBlanc 34:47
So, let's, let's, if you, if you're open to it, let's get you back on later and see how these things are evolving.
Joseph Cohen-Lyons 34:52
Yeah, that would be great. Thanks for having me.
Michael LeBlanc 34:55
Thanks for tuning in to today's episode of The Voice of Retail. Be sure to follow the podcast on Apple, Spotify, or wherever you enjoy podcasts, so you don't miss out on the latest episodes, industry news, and insights. If you enjoyed this episode, please consider leaving a rating and review as it really helps us grow so that we continue to get amazing guests onto the show.
Michael LeBlanc 35:14
I'm your host Michael LeBlanc, President of M.E. LeBlanc & Company Inc. and if you're looking for more content or want to chat, follow me on LinkedIn or visit my website at meleblanc.co
Michael LeBlanc 35:23
Until next time, stay safe and have a great week!
SUMMARY KEYWORDS
employer, provinces, vaccines, terminate, employees, vaccinated, questions, pandemic, case, bit, workplace, people, Norton Rose Fulbright, accommodate, employment law, canada, quebec, law, labor, respect