In August 2021, the government of British Columbia introduced Vaccine Passports which are now required for certain recreational and social activities throughout the province. Some workplaces in BC are now also requiring their employees to be vaccinated in order to remain employed. This has prompted many questions for both employers and employees about their legal rights. This blog will discuss these mandates within the workplace, as well as possible eligibility for severance packages.
Recent legislative changes have mandated that a vaccine passport be shown prior to entering indoor spaces such as casinos, restaurants, movie theatres, and gyms. However, with respect to vaccine mandates within non-union workplaces, the BC government has tasked employers with implementing policies using their own discretion.
In other words, there is currently no legislative guidance as to how to implement vaccine mandates within a non-unionized workplace. An example of a unionized workplace would be a hospital, as all healthcare workers and volunteers will need to be fully vaccinated as of October 26th according to the government of British Columbia.
Resignation and Constructive Dismissal
In most cases, if a person resigns from their place of employment, they are not entitled to negotiate a severance package with their employer. Employees are typically only entitled to severance packages when their employer fires them without just cause, or when they did not adhere to their termination notice period.
However, there are some cases where an employee may claim “Constructive Dismissal” against their employer.
What Does “Constructive Dismissal” Mean?
Constructive Dismissal, generally, is when an employee alleges that they were prompted or forced to quit their employment. For example, due to a toxic or hostile work environment. This could also be due to changes in the terms of an employment agreement, changes in the work environment, or changes in employment obligations. Examples of these changes can include:
- changes to job duties,
- workplace harassment or bullying,
- changes to compensation packages, and
- relocation of work premises.
In a Constructive Dismissal situation, an employee could claim a severance package from their employer as a result of terminating their employment contract.
Claiming Constructive Dismissal
Typically, when an employee’s work environment becomes intolerable as a direct result of these (and other) changes, they will consider resigning and filing a claim for constructive dismissal.
Given the uncertainty around workplace vaccine mandates, it may be possible to extend the list of examples of reasons for Constructive Dismissal resignation to include instances where employers make the workplace environment intolerable because of an employee’s choice to not receive the vaccine.
Constructive Dismissal and Severance
The Courts could treat the resignation as a termination or dismissal when a claim for Constructive Dismissal is successful and the employee is able to prove that they had no other choice but to resign. In these situations, the employee may be entitled to a severance package.
An important note is that it would have to be proven that the employee did not resign voluntarily. In other words, the onus is on the employee to prove that their employer forced their resignation. In the context of vaccine mandates, it is possible that this could be a direct result of refusing to adhere to the workplace’s vaccine mandates, or a hostile work environment due to vaccination choices.
We must reiterate, however, that the success of claiming Constructive Dismissal in relation to a workplace vaccine mandate is not guaranteed. The law with respect to vaccine mandates in the workplace and how that affects resignation and severance is still developing. As such, it is likely that the Courts will consider each instance on a case-by-case basis. The specific situation of one’s workplace and if or how it has changed due to vaccine mandates would determine each individual outcome.
Termination and Severance
If an employee has been fired (terminated) or put on leave (as a result of vaccine status or otherwise), it is possible that they may be eligible for severance. This would depend on various factors regarding one’s employment, and it is suggested that if this is the case, that you consult with a lawyer regarding your legal rights, obligations, and options.
Whether you are an employer or employee, we can provide guidance with respect to your legal rights, options, and obligations as they relate to vaccine passports and mandates in the workplace.
Currently, there is limited case law regarding how resignations and terminations in the workplace due to vaccine mandates will be treated by the Courts. It is therefore recommended that you speak with an employment lawyer in regards to your specific situation, who is knowledgeable about the current state of the law and can help guide you in these uncertain times.
Disclaimer – The information contained herein is of a general nature. It is not intended to be legal advice and it is not intended to address the exact circumstances of any particular individual or entity. No one should rely on or act upon such information without receiving appropriate professional advice and without a thorough examination of their particular situation. Please contact our office if you have any questions with respect to the content of this entry, this website, or our Terms and Conditions .