Purpose

This document is intended to give clarity to mandatory COVID-19 vaccination policies and the issues most frequently raised by USW Local 2009 members. Members have the right to understand the law as it currently stands, including the possible consequences of their choices, whether or not they believe that those consequences are fair. Members should make decisions in light of the most accurate information that you are able to access.

Workplace Mandatory Vaccine Policies

Employers are allowed to make vaccination policies without agreement from unions or members as long as those policies are reasonable and do not conflict with the collective agreement. This is not new, nor is it unique to vaccination policies. A reasonable vaccination policy is one that balances the employer’s interests in protecting employees and the public from the dangers of COVID-19 against employees’ interests in bodily integrity and privacy. COVID-19 policies must comply with the applicable human rights and privacy legislation.

Employers ought to provide members who are not vaccinated an opportunity to speak confidentially with a medical professional to discuss concerns and to ask questions about the safety and benefits of vaccines for their families, their coworkers, and themselves.

After being given that opportunity, if a member still chooses not to be vaccinated, their individual right to refuse vaccination may come into conflict with the collective rights to well-being of their co-workers. In such cases, member discipline For refusing to comply with a reasonable vaccine policy is likely to be upheld by an arbitrator, absent a human right to refuse vaccination.

Accordingly, all members who can get vaccinated should be vaccinated.

Members may also be disciplined for:

• Faking a vaccination record as proof of vaccination;

• Refusing to attend a vaccine education session where required by the employer’s policy; and

• Attending work without a negative COVID-19 test, and/or faking a negative COVID-19 test, where required by the policy

Can My Employer Force Me to Get the Vaccine?

Employers will not be permitted to force members to be vaccinated against their will, but rather, to impose restrictions on members who refuse the vaccine. For instance, an employer may direct a member who refuses the vaccine to work remotely (where possible), undergo frequent COVID-19 testing, wear additional PPE, or take a leave of absence without pay. In some cases, members who refuse the vaccine absent a valid medical or religious reason may face discipline or dismissal.

Can My Employer Ask for Proof of Vaccination?

Employers will be permitted to request proof of vaccination from members. However, privacy laws require that the information collected from members be used and stored purely to serve the narrow purpose of the vaccination policy. In  R. v. Frampton, 2021 ONSC 5733 the court addressed privacy and vaccination information.  Read "A human rights approach to proof of vaccination during the COVID-19 pandemic"

The Caselaw

In Chinook Health Region (113 L.A.C. (4th) 289) , Arbitrator Jolliffe upheld a policy which required health care workers to either remain off work or obtain vaccinations during a flu outbreak, ruling that the policy was reasonable because it was rationally connected to the employer's business interest in health and safety, and because it did not make the vaccine mandatory “in the pure sense” as employees could elect to take an unpaid leave.

In Interior Health Authority v. B.C.N.U., B.C.C.A.A.A. No. 167, [2007]  Arbitrator Burke upheld a hospital’s mandatory vaccination policy, rejecting the union’s argument that the policy amounted to coerced medical treatment in violation s. 7 of the Charter.

In Health Employers Association of British Columbia, ([2013] B.C.C.A.A.A. No. 138),  Arbitrator Dieboltin upheld a hospital's vaccinate or mask policy based on evidence that masking had a "patient safety purpose and effect”.

In EllisDon Construction Ltd. v Labourers’ International Union of North America, Local 183, (2021) on June 10, 2021, Arbitrator Robert Kitchen dismissed a policy grievance challenging a COVID-19 rapid on-site testing policy implemented by EllisDon Construction Ltd. The company had required all individuals attending at affected job sites to be tested before gaining access to the worksites. The policy was challenged by Local 183 of the Labourers’ Union as unreasonable. The Arbitrator dismissed the grievance. In finding the policy reasonable, the Arbitrator pointed to (amongst other factors) the severe and ongoing threat of COVID-19 in the province.

In addition to the substantive hurdles to bringing a successful legal challenge, there are also significant procedural challenges. Any challenge to a mandatory vaccine policy to any legal body, whether it be a court, human rights tribunal, or arbitration, involves a lot of work, effort, resources, expense, and time.

Given that vaccine policies are currently being put in place, there is no realistic expectation of receiving a decision on any challenge in time, or any time in the reasonable future. The clock will likely “out race” any challenge in this case.

Additionally, the chance of obtaining a temporary order to halt the requirement for full mandatory vaccination such as an injunction, stay, or other similar remedy is even more difficult, uncertain, and unlikely. The test to obtain an injunction or a stay is a very high bar to meet. It is highly unlikely that any adjudicator would order an injunction or stay in these circumstances.

For more information please read “Influenza Control Policies” Willis & Winkler 2014

Does the Union have a Risk of Breaching the Duty of Fair Representation By Not Challenging a Mandatory Vaccination Policy?

Most Unions including USW Local 2009 strongly support vaccination against COVID-19 for every Canadian that can be vaccinated. However, Unions expect that any decision to impose mandatory vaccination requirements in a workplace must be based on scientific evidence and be made by public health officials, not employers.  Should any employers implement a mandatory vaccine policy, that require their staff to be vaccinated for COVID-19 as a condition of employment, Unions will be prepared to scrutinize their policy in the same way that they scrutinize every employer policy using KVP criteria

  • Is the policy reasonable in the circumstances of the ongoing pandemic and the nature of the work being completed?
  • Is the policy being applied in a way that can be found to be arbitrary or discriminatory?
  • Does the policy violate any sections of the applicable collective agreement?
  • Is the policy in compliance with current Public Health Orders, guidelines from the Information and Privacy Commissioner, the Human Rights Commission, as well as guidance set out by the courts, labour boards or arbitrators?
  • Is there an alternative option available that protects the health and safety of our members to the same extent vaccinations can provide, and moreover, would that alternative be an undue hardship on the employer?

Mandatory vaccination policies will be challenged to ensure that the requirement to vaccinate is proportionate in response to a real and demonstrated risk or business need, and particularly not in the absence of a specific statutory authority, provision of a collective agreement, or government mandate.  The first successful challenge was in Electrical Safety Authority v Power Workers’ Union, 2021 CanLII 101015 (ON LA)

In a decision dated November 11, 2021, Arbitrator John Stout ruled that the Electrical Safety Authority's (ESA) mandatory vaccination policy was unreasonable to the extent that employees could be disciplined or placed on a leave of absence without pay for failing to be vaccinated. The Power Workers’ Union grieved the policy on the basis that it was unreasonable and a significant over-reaching exercise of management rights, which could not be justified by any workplace dangers or hazards. In response, the ESA argued that the policy was necessary to fulfill their legal obligations to take every reasonable precaution to protect their workers and the public.

Arbitrator Stout concluded that disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, was unjust in the circumstances. In reaching his conclusion, Arbitrator Stout noted that context is extremely important when assessing the reasonableness of a workplace rule or policy that may infringe upon an individual employee’s rights, stating at para. 17:

In workplace settings where the risks are high and there are vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated), then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.

Arbitrator Stout added that the reasonableness of any vaccination policy may change as the circumstances of the pandemic change, and that what may be considered unreasonable today may become reasonable in the future, at para. 19:

It must also be noted that the circumstances at play may not always be static. The one thing we have all learned about this pandemic is that the situation is fluid and continuing to evolve. What may have been unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.

Finally, Arbitrator Stout emphasized that his decision ought not be seen as “any form of vindication for those who chose, without a legal exemption under the Ontario Human Rights Code, not to get vaccinated.” According to Stout, “the choice of individual employees not be vaccinated may result in consequences at a later date and in different circumstances. Those who continue to refuse to be vaccinated are not just endangering their health but may also placing their employment in jeopardy”  

 Unions know that some workers cannot be vaccinated for health reasons and perhaps other legitimate and protected reasons; and in these cases  workers must be offered reasonable accommodation to the point of undue hardship. In cases where employees simply choose not to get vaccinated, unions will continue to examine the reasonableness of the policy and whether alternatives to a mandatory vaccination policy exist.  This practice will insulate the union from any Section 12 liability.

In Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, 2004 CanLII 65459 (BC LRB),  a worker filed a Section 12 complaint under the BC Labour Relations Code alleging that the Union acted in an arbitrary manner by agreeing to a mandatory immunization program without consulting employees. The worker also argued that the mandatory inoculation program is contrary to the collective agreement which prohibits individual employees from entering into contracts with the Employer concerning conditions of employment. He further argued that the Union acted in an arbitrary way by agreeing to exempt employees from the mandatory inoculation program on only two grounds – religious and medical. He contended that his Charter right to life, liberty and security of person had been breached.

In her decision the Vice Chair stated: that “while consultation with employees over changes in working conditions such as occurred in this case is encouraged, it is not necessarily a requirement under the Code. As long as the Union does not act in a way that is arbitrary, discriminatory or in bad faith the duty of fair representation is not breached.  In this case, the Union satisfied itself that the Employer's actions were reasonable and legally permissible, and it ensured that employees were permitted the exceptions available to them by law.  In the circumstances, I do not find that the Union's agreement to the program or its failure to consult employees beforehand supports a breach of Section 12.”

 What Is a Legitimate Reason for Refusing the Vaccine?

Mandatory vaccination policies must accommodate members who refuse the vaccine based on protected grounds under human rights legislation. For example, members who cannot be vaccinated because of sincerely held religious beliefs, medical conditions, or disabilities are entitled to reasonable accommodation up to the point of undue hardship. Medical conditions that may give rise to an exemption are those that are recognized as contraindicated by medical professionals, such as a severe allergy to an ingredient in the vaccine.

Self-reported conditions or symptoms are not enough. Employers are entitled to receive objective medical evidence from an independent healthcare professional. While this may involve disclosing clear medical notes, there is no requirement to disclose the member’s specific medical diagnosis. Once a valid exemption is established, employers may require the exempted member to wear additional PPE, undergo daily rapid antigen testing, and practice social distancing where possible to ensure workplace health and safety obligations are met.

What About Medical Exemptions?  Certified medical contraindications to full vaccination against COVID-19 with an mRNA vaccine are based on recommendation of the National Advisory Committee on Immunization. The following are certified medical contraindications as of September 10, 2021:

  • A history of anaphylaxis after previous administration of an mRNA COVID-19 vaccine; A confirmed allergy to polyethylene glycol (PEG) which is found in the Pfizer-BioNTech and Moderna COVID-19 vaccines (Note that if a person is allergic to tromethamine which is found in Moderna, they can receive the Pfizer-BioNTech product). 

Medical reasons for delay of full vaccination against COVID-19 as described by the National Advisory Committee on Immunization as of September 10, 2021 include: o A history of myocarditis/pericarditis following the first dose of an mRNA vaccine.

  • An immunocompromising condition or medication, waiting to vaccinate when immune response can be maximized (i.e., waiting to vaccinate when immunocompromised state / medication is lower).Certain conditions, such as HIV and AIDS, destroy immune cells, leaving your body vulnerable to other attacks. Autoimmune conditions turn immune cells into double agents that fight against your own healthy tissues. Common autoimmune diseases include: Lupus, Rheumatoid arthritis, Type 1 diabetes

What About Creed?

Creed is a ground under human rights legislation that covers sincerely, freely, and deeply held belief systems that are integrally linked to a person’s identity, self-definition, and fulfillment, that govern that person’s conduct and practices. If a member’s religion or creed prevents them from becoming vaccinated, they are entitled to reasonable accommodation.

A member’s singular belief against vaccinations or COVID-19 vaccines in particular does not amount to a religion or creed under human rights legislation. Similarly, beliefs about the safety or efficacy of COVID-19 vaccines or the dangers of COVID-19 are not creeds.

Establishing human rights exemptions based on creed will require proof that the member has a sincere, long-held belief that they cannot become vaccinated due to their religion. This may involve letters from spiritual leaders who have a longstanding relationship with the member attesting the nature of the religious belief and proof of long-standing practice.

Major organized religions (e.g., Islam, Roman Catholicism, Judaism, Greek Orthodox, Mennonites) have made statements that they support COVID-19 vaccination for their members in the interest of public health.

Other religions that are generally known to have theological objections to vaccinations have released public statements indicating their support for the COVID-19 vaccine (e.g., Jehovah’s Witnesses, Christian Science).

https://www.jw.org/en/jehovahs-witnesses/faq/jw-vaccines-immunization

https://www.christianscience.com/press-room/a-christian-science-perspective-on-vaccination-and-public-health

https://www.cacatholic.org/CCC-vaccine-moral-acceptability

https://isna.net/covid-19/

https://apnews.com/article/health-religion-united-states-coronavirus-pandemic-coronavirus-vaccine-9c947acecd6ba26b4c78827b7b87c185

https://canadianmennonite.org/noexemptions

What About Pregnant Individuals?

Those who refuse the vaccine due to pregnancy will most likely not be granted human rights protections absent medical complications that prevent them from being vaccinated. Evidence about the safety and effectiveness of COVID-19 vaccination during pregnancy has been growing. Data suggest that the benefits of receiving a COVID-19 vaccine outweigh any known or potential risks of vaccination during pregnancy. Members should speak to their doctors if they are concerned about their particular circumstances.  According to the US Centre for Disease Control COVID-19 vaccination is recommended for all people 12 years and older, including people who are pregnant, breastfeeding, trying to get pregnant now , or might become pregnant in the future.

What about the Canadian Charter of Rights and Freedoms?

One of the most common objections to mandatory vaccination policies relate to the doctrine of informed consent and the right to be free from coerced medical treatment. In Canada, these rights are captured under section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the life, liberty, and personal security of all Canadians.

There is no doubt that a mandatory vaccination policy infringes on an employee’s rights including the rights guaranteed by Section 7: the right to life, liberty and security of the person. However, as with any right, there are limits. Section 1 of the Charter states that all of its rights can be subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The health and safety of the general population and specific workplaces greatly outweighs the infringement created by requiring vaccinations for all employees who are able to take it. In this case, we note in particular the risk of serious illness or death caused by Covid-19; its extreme transmissibility especially amongst the vulnerable; and the documented effectiveness of the vaccines currently available to the population. This is to say nothing of the economic and social devastation wreaked by the virus.

In the case of COVID-19 vaccine mandates, employers will very likely be able to justify an invasion of section 7 rights on the basis that the vaccine mandate is reasonable and “demonstrably justified” due to the public safety threat of COVID-19. Please read :Surfing the Fourth Wave: Riding out a Charter Challenge to University and College Vaccination Mandates, 2021

What About The Privacy Laws?

Employers will not be prevented from collecting and maintaining a record of member vaccine status under Canadian privacy laws. However, privacy laws require that members’ personal information be used and stored purely to serve the narrow purpose of the vaccination policy. Read  "Privacy and COVID-19 Vaccine Passports"

What About the Nuremberg Code and the Doctrine of “Informed Consent”?

The Nuremberg Code was created in 1947 in Nuremberg, Germany, following a military war crimes tribunal of a group of Nazi doctors accused of conducting inhumane and deadly experiments on prisoners of concentration camps without their consent. The Code has not been officially accepted as law by any nation or as official ethics guidelines by any association.

The four COVID-19 vaccines approved for use in Canada all underwent rigorous, closely monitored clinical trials before being reviewed by Health Canada. They are approved medications that fall outside the authority of the Nuremberg Code.

Further, there is a difference between forcing a member to be vaccinated and imposing consequences on a member who chooses not to become vaccinated. Employers cannot force members to become vaccinated.

Any claims that the COVID-19 vaccines violate the Nuremberg Code are false. To take those principles and to apply them to a context where a developing but known scientific procedure was used to develop a vaccine that went through all of the required testing procedures and phases for approval by drug administrations globally, that has been tested on and used on millions of people, is irresponsible. Read "Nuremberg Code Addresses Experimentation, Not Vaccines"

In O.M.S. v E.J.S., 2021 SKQB 243 , a father was granted an order having his twelve year old daughter vaccinated against the mother's wishes. The court commented on the Nuremberg Code at paragraph 37.

What If the Employer Cannot Provide an Accommodation?

If the employer can prove that vaccination is necessary for all employees and that accommodation is not possible without undue hardship, then it would be lawful for the employer to exclude a member from the workplace even if they have a valid claim for human rights protections. This does not mean that the employer can automatically dismiss the member. Rather, the employer may temporarily place the member on an unpaid leave of absence. For an employer to use undue hardship as a reason not to accommodate would require objective evidence to meet the the very high threshold of "undue hardship".

The Providence Health Care v. Dunkley,2016 BCSC 1383  decision highlights that employers must prove that they have engaged in a comprehensive investigation into the true cost of accommodation, including an assessment of all sources of funding available, before they successfully rely on undue hardship.

What If I Have an Adverse Reaction to the Vaccine?

Data strongly supports that vaccine injuries are extremely rare. In any event, the Federal Government’s Vaccine Injury Support Program provides financial support to those who experience a no-fault “serious and permanent injury” after receiving a vaccine.

For members with short-term injuries, it seems likely that an adverse reaction may be compensable under workers’ compensation regimes if the member was vaccinated after being required to do so by their employer as a condition of continued employment. Workers' Compensation claims for adverse reactions to the COVID vaccination are possible in British Columbia.

If a worker submits a claim for an adverse reaction, injury, or death from the COVID-19 vaccine, it would have to be shown that the adverse reaction, injury, or death arose out of and in the course of the worker’s employment. WorkSafeBC considers:

  • Whether the COVID-19 vaccination was a mandatory requirement of employment.
  •  If the worker sustained an injury (or death) as a result of the COVID-19 vaccination.

To determine whether the worker’s injury or death resulting from the COVID-19 vaccination arose out of and in the course of the worker’s employment, WorkSafeBC establishes whether the inoculation or injection was a requirement of the worker’s employment.The COVID-19 vaccination would be considered to be required by employment if it meets one of the following criteria as outlined by policy in the Rehabilitation Services & Claims Manual (page 84).

Once it is established that the COVID-19 vaccination was a requirement of the worker’s employment, or the worker was convinced that it was necessary for employment, any injury or death that resulted from the vaccination would be considered to arise out of and in the course of the worker’s employment. All claims are adjudicated on the merits and justice of the case.

Can a worker refuse unsafe work because a co-worker has not been vaccinated for COVID-19?

Workers in B.C. have the legal right to refuse unsafe work if there is reasonable cause to believe it would create an undue hazard to their health and safety. For COVID-19, an “undue hazard” would be one where a worker’s job role places them at increased risk of exposure and adequate controls are not in place to protect them from that exposure.

If a worker feels unsafe because they are working in proximity to a worker who has not been vaccinated for COVID-19 or other communicable disease, they should speak to their supervisor or employer and immediately report their concerns.

The employer must investigate the matter. As part of their investigation, the employer should review the level of risk and ensure the fundamentals of communicable disease prevention are applied, and appropriate measures are implemented to reduce the risk of workplace transmission of COVID-19 and any other communicable disease.

If the worker and the supervisor or employer cannot resolve the issue, they must contact WorkSafeBC and a prevention officer will investigate and take steps to find a workable solution.

WorkSafeBC prevention officers investigating work refusals will deal with each refusal on a case-by-case basis. They will undertake a full assessment of the situation and will issue any orders necessary to address the hazard.

In general, an unvaccinated worker would not be considered an undue hazard, particularly if there were control measures in place. However, there may be situations where an undue hazard could exist if a communicable disease prevention program is not in place, or deemed insufficient. Each refusal needs to be assessed on a case-by-case basis.

Currently in B.C., most employers do not have mandatory vaccination policies, although some are choosing to implement them. WorkSafeBC has been advising employers that they may choose to implement their own staff-vaccination policies based on their own due diligence.

Evidence shows that vaccination is the best control measure available to prevent the spread of COVID-19. That’s why WorkSafeBC introduced a mandatory vaccination requirement for its own staff. 


Will I Be Eligible For Employment Insurance If I’m Placed on an Unpaid Leave Of Absence After Refusing the Vaccine ?

In most cases, if you lose or quit your job because you didn’t comply with your employer’s mandatory COVID-19 vaccination policy, you won’t be eligible for EI regular benefits. To determine if you’re eligible, the government of Canada (Employment and Social Development Canada) may contact you to obtain information such as:

• if your employer clearly communicated a mandatory COVID 19 vaccination policy to you

• if you were informed that not complying with the policy would result in you losing your employment

• if applying the policy to you was reasonable within your workplace context

• if you have a valid reason for not complying with the policy and your employer didn’t provide you an exemption

They will use the facts provided by you and your employer to determine if you’re entitled to benefits.

For more information visit: https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/eligibility.html

Join Our Union

If you, or anyone you know wants to make real change and improvements at work, join us.

Learn More