'I did not sign up to act as security': Trouble on the frontlines as staff deal with | Server Security

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'I did not sign up to act as security': Trouble on the frontlines as staff deal with

Howard Levitt and Muneeza Sheikh: Employees do not want to risk involvement in a potential confrontation with a customer

Author of the article:

Howard Levitt and Muneeza Sheikh, Howard Levitt

Publishing date:

Oct 19, 2021  •  1 day ago  •  5 minute read  •  157 Comments

Employees are complaining about being forced to vaccinate to hold on to their jobs and helping the employer manage vaccination passports from an operational standpoint.
Employees are complaining about being forced to vaccinate to hold on to their jobs and helping the employer manage vaccination passports from an operational standpoint. Photo by Timothy A. Clary/AFP via Getty Images files

Two things have firmly implanted themselves in both the public and private sector across this country: employer-driven mandatory vaccination policies and vaccination passports.

Even with vaccine passports, businesses still have the burden of ensuring that physical distancing, frequent sanitization, training, protective gear and enhanced ventilation become regular practices at work.

As a firm that represents both employers and employees, frustration is growing among the latter. Employees (largely the ones that pushed against the vaccination altogether) are complaining about being forced to vaccinate to hold on to their jobs and helping the employer manage vaccination passports from an operational standpoint.

While employers struggle to balance risks to the financial health of their businesses, potential COVID-19 outbreak concerns, medical documentation privacy concerns and employees’ human rights concerns — they often forget that a profitable business is still dependent on staff incentivized to perform their jobs.

Suffice to say, a large number of employees tell us these changes have resulted in over-all demoralization in the workplace. Employees ask us repeatedly: “Do we have to act as frontline staff for our employer? It was never part of our job description.” A client recently complained by stating, “I am a server, but I did not sign up to act as security at the door. I am scared of confrontation, why do I have to do this? I don’t fully understand who qualifies for an exemption.”

A growing number of employees do not want to risk involvement in a potential confrontation while trying to determine who should be allowed into a business.

In a perfect world, employers would hire staff tasked specifically to deal with vaccine passports at the door. But the pandemic world is far from perfect.

Employers cannot ignore the fact that some patrons, clients and customers will do the following:

1. Try to gain entry into their business unvaccinated by claiming that they have a medical or religious exemption (as it stands, Ontario has not yet followed suit with Quebec, which has banned all religious considerations in the face of what it calls a “public health urgency”); and

2. Present falsified vaccination documents to gain entry into their business.

Recently, Muneeza attended a dinner at a well-known Toronto steakhouse only to see that the patron ahead of her did not have ID to prove their vaccine conformation. The flustered waiter considered denying entry and potentially causing a scene. In the end, he did not. Later when asked why he did not turn the patron away. He responded by saying, “they don’t pay me enough to do this. It is stressful, and I operate largely on tips. They should hire someone to do this work.”

The answer made sense, but if the restaurant was strict about the vaccine passport implementation, this employee could have been terminated for cause in our view for violating the rules of the restaurant and province.

From an employee’s perspective they neither have the skills, training, or expertise to properly make a determination about whether a human rights exemption (medical or religious) is valid. While the government has provided some guidance on medical exemptions, there are a slew of accompanying conditions and, of course, a narrative around those conditions not easily decipherable for most. Establishing whether a doctor’s note is sufficient before medical exemptions can be integrated into a vaccine certificate is not easy.

Even if the unvaccinated employees make it into the business, there is still the issue of having them wear masks and maintain social distancing. While the liability falls on the employer, the strict adherence of the policy falls on the shoulders of its employees.

Furthermore, the provincial mothership has stated that employers, in implementing vaccine passports, should not hesitate to get law enforcement involved. While this provides reassurance and support to employers, it has created significant anxiety for employees refusing to partake in a potential door place scuffle.

So, do your job duties include helping your employer maintain a safe working environment in relation to the vaccination passport?

The short answer: yes.

Generally, most Canadian employees must assist their employer in keeping the workplace safe. This includes ensuring that those who enter are vaccinated and not lying about it.

What if the new duties fall outside of your original job?

If, as part of your general duties, you are responsible for ensuring the business runs smoothly, then this new task as frontline security is not a significant change to your job duties. Put another way, if overseeing the business is what you do — then consider this to be an expansion of that obligation.

In our view, there are few employees that could argue that the new duties around implementation of vaccine passports fall far outside of the scope of their job. If you are the company bookkeeper, rarely interacting with clients/patrons/customers, you may be able to argue that you are being forced to do a brand-new job. The employee in this unique scenario might be able to push back and punt the duties to employees better suited to do the work.

As an employer, you can do the following to ensure that your employees are not left overburdened and anxious:

  • Implement mandatory training, so your employees understand how to enforce the vaccination passport at the door. Following the Ministry of Labour’s “Education First” approach is key;
  • Keep your employees up to date on changes to vaccine legislation (many employees complain of receiving the bulk of their information from, often inaccurate, media sources);
  • Apply the vaccine passport implementation consistently. Ensure that your employees are not using personal discretion in admitting or denying entry to your business. If there is a lack of consistency in implementation, it will be difficult for employers to discipline employees;
  • Take steps to ensure that your employees understand what is at stake for you as an employer in failing to implement the passport: hefty fines, potential shutdown and potential subsequent job loss; and
  • Above all, ensure your employees know that they are safe. Violence or harassment against staff should carry a zero-tolerance policy, with authorities contacted if necessary.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

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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‘I did not sign up to act as security’: Trouble on the frontlines as staff deal with

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