Don't hold in-person holiday parties this year — and other tips for this tricky holiday season

Howard Levitt and Muneeza Sheikh: Some fully vaccinated employees are asking about their right to sue employers for being forced to get jabs

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By Howard Levitt and Muneeza Sheikh

As we close out the year, we want to recap the issues both our firm’s employer and employee clients are presently most concerned about. From holiday parties to the newish Omicron variant, here are three areas representing the bulk of questions being asked right now.

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Holiday parties

Despite liability around misconduct linked to drinking, “after-parties” (which are still workplace events) and sexual harassment (often in the form of unwanted touching), employers are still looking to find loopholes of sorts in putting together a holiday celebration.

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It is indisputable that employee morale is at an all-time low from the stresses of job security, changes to job location (remote work, in office, and hybrid models), and general pandemic fatigue. People want to laugh, party, and at least pretend to be merry — and no one wants to wear a mask any more.

Although we dealt with this in general terms in an earlier column this month, given the new variant and accompanying restrictions announced in the past few days, we thought it best to revisit the holiday party. Employers should know they could potentially be held liable for outbreaks of this new and admittedly easily transmittable virus at any party (or “after party”) they choose to hold.

We are now recommending that employers not hold in-person holiday parties in the current climate. If you do, you run the risk (especially if holding the event off-site) of exposing your employees to the virus — again. Give that we are back in a public health crisis, you run the risk of lawsuits for negligence in holding a party, ill employees, and potentially operational interruptions. The best advice on this is two-fold: find a different method for boosting morale, or consider hosting a luncheon at work during working hours that is COVID-responsible.

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Another jab

The assumption is that all Canadian employees were vaccinated by choice. We still have employees (some fully vaccinated months ago) asking about their right to sue their employers for forcing them to comply with its vaccination policy.

They say they chose job security (many of them are sole-income earners) over their health. However, legally misguided that view is, it is passionately adhered to by its proponents.

During the vaccination policy rollout, our employer clients complained incessantly about employees threatening to quit, complaining of alleged health conditions that prevented them from being vaccinated (generally not genuine exemptions) and administrative problems with implementing rapid tests at work. Things have settled. Sort of.

As an employer, do not assume the new booster shot will be met with enthusiasm by all vaccinated employees. Many of them believe your policy was unreasonable and will attempt to evade the booster when you make it mandatory. Rest assured that our view is that the booster shot falls within your current policy around vaccination at work. While your current policy may speak only to “two doses,” be prepared to quickly send a directive advising employees that the booster encompasses that. Employers should be prepared for some turbulence in this regard but, in our view — the law is on your side.

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Back to work … or remote?

The projections around the new variant suggests cases in the many thousands by Christmas. Ontario and other provinces have recommended employers reverting (where possible) to a remote model until the virus reaches a tipping point.

This is alarming for some employers that have only just phased employees back to work either full-time or through a hybrid model requiring them in the office part-time. Some public sector employers (including the City of Toronto) are now reverting to a remote model; private sector employers may follow suit.

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If, however, your employees have been back at work for some time without incident — as our office has — you can continue to remain operational at work by being extra vigilant on social distancing, protective gear where applicable, and general reminders around health and safety.

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Employees have a right to hold employers accountable around proper health and safety protocols. Preparation, where applicable, for remote work should be under way so that the transition, if necessary, can be as seamless as possible.

Got a question about employment law during COVID-19? Write to Howard at [email protected].

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Muneeza Sheikh is with Levitt Sheikh.


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