The Toronto Transit Commission is ending its mandatory coronavirus vaccination requirement for workers and offering to reinstate employees who were terminated as a result of the policy without back pay.
The transit agency said the mandate — introduced in September 2021 — will be lifted Nov. 27, though it’s continuing to encourage employees to stay up-to-date with coronavirus vaccinations. Employees who were terminated as a result of the policy will be invited to return to work and will maintain their seniority. However, they won’t be eligible for back pay, a move that could prompt lawsuits.
Rich Appiah, an employment and labour lawyer, says inviting previously terminated workers back to work likely wouldn’t make the agency liable for back pay. “If an arbitrator reviews their case, the arbitrator will determine whether, at the time the employees were dismissed, the vaccine mandate was reasonable,. If an arbitrator finds that the vaccine mandate was reasonable at the time that it was implemented and at the time that the employees were dismissed, the employees wouldn’t be entitled to back pay.”
Appiah notes the issue of back pay entitlement is workplace dependent, meaning a court or an arbitrator would only look at whether a vaccine mandate was reasonable at the specific workplace when it was enforced, regardless of whether other employers have held or dropped vaccine mandates.
“A broad lifting of vaccine mandates doesn’t necessary mean a specific workplace, like the TTC, should have lifted its vaccine mandate,” he says. “Every workplace has a legal responsibility to ensure the health and safety of its workers.”
There have been several cases recently where courts and arbitrators have ruled that vaccine mandates were reasonable at the time they were implemented, he adds “I’m not familiar with any case in which an employee has been awarded damages.”
The TTC is one of several employers that have lifted vaccine mandates this year without granting back pay. The City of Toronto plans to drop its coronavirus vaccine mandate on Dec. 1 and will offer to reinstate unionized unvaccinated employees and those who didn’t disclose their vaccination status.
Last month, the Canadian Armed Forces said vaccines would no longer be required for all those serving in uniform and its policy would instead be based on the roles and responsibilities of individual service members, though it promised to press ahead with the forced expulsion of dozens of unvaccinated troops.
In March, the Ontario government lifted its vaccine policy for the long-term care sector — the only workers the province had mandated shots for.