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If you wish to speak with someone please call the CUPE 389 Office at 604-987-1231 or Cindy McQueen on her cell: 778-628-9537 or email: email@example.com.
Nov 17, 2021
To All CUPE 389 Members
We have been receiving inquiries at the Union office about mandatory vaccinations. The majority of the callers express a view that they support the requirement to be vaccinated and hoped that the Union did not plan to challenge the policy. Others, a much smaller number, however, asked us to do the very opposite.
We are monitoring this situation carefully and are receptive to concerns of members on both sides of the issue. This is a rapidly evolving area of law, with recent court and arbitration decisions split on the issue. Therefore, we are not filing a policy grievance at this time in order to take advantage of a provision in law that enables us file a grievance when and if any actual harm ensues (i.e. discipline to a member, etc.).
“Are there grounds by which I can be exempted from being required to be vaccinated?” is a question we get from time to time.
The answer is yes, there are two, but it is unlikely that either would apply to you.
Vaccines are required to continue working for the Employer, but that isn’t the same as being forced to take a vaccine. There is no guarantee to employment in the Canadian Charter of Rights and Freedoms. The Employers are not forcing you to get the vaccine, they’re forcing you to get vaccinated if you wish to continue working for them, since they must, by law, consider the welfare of the collective, and appropriately balance competing rights and interests.
The two grounds by which a person could be exempted from the vaccine and be accommodated are so rare, limited and will affect so few Canadians, that it’s almost not worth thinking about. They are:
- Medical Exemption
- “Creed” / religion protection under the HRC
To obtain a medical exemption, the person has to be at known risk of a severe, high-risk allergic reaction to a component of a vaccine or to inflammation of the heart. Even at that, the College of Physicians and Surgeons has stated that the exemptions will not be given to those who have relatively minor potential adverse reactions, as the risk of the virus has been judged to be worse.
The religious creed prohibited grounds in the Human Rights Code are not something workers can just suddenly claim; they have to be a member of a religion, and prove as much, which has as one of its known and communicated tenets a prohibition on vaccinations. No such religions are known to exist in Canada. Members should be careful about claiming this exemption, as the outcome may be the employer concluding that the member had attempted to fraudulently misrepresent a claim toward an accommodation, which could result in discipline.
Leave of Absence
The question, then, becomes: “Can I retain my employment if I choose not to get vaccinated.” The short answer is “yes,” but it isn’t entirely clear for how long, and your leave of absence would be without pay or benefits.
At this time, the City of North Vancouver and related employers intends to place those who refuse to comply with the policy on an administrative leave without pay for up to 3 months, and the District of North Vancouver and related employers intend to have a 6 month maximum leave of absence. Following that period, they have indicated that a termination of employment is possible.
Members are reminded that a leave of absence without pay would mean a loss of pensionable service for the period of the leave, and EHB/LTD/Group Life premiums would need to be borne fully by the member, which, if additional beneficiaries are insured on the plan, with two children and a partner is somewhere between $460 and $650 per month.
While the Union can provide you help to arrange for a leave of absence or similar, and continue to advocate for you, we are of the view that on the whole, the law will support the efforts of the employers and there will be few remedies available for those who persist in their opposition to the vaccine.
Under the current law, Employers are free to impose unilateral policies. They do not need to bargain policies with the Union, and there is no requirement for them to receive our permission.
Employers have a management right to make decisions in employment-related areas, absent some constraint by either the collective agreement or statute. Therefore, the question is not whether employers have the authority to create policies related to vaccination, but rather whether such policies are reasonable.
When unilateral employer policies are grieved, they are measured against the standard set out in the seminal case of Lumber and Sawmill Workers Union, Local 2537 v KVP Co. (1965), 16 L.A.C. 73 (“KVP”). The case set out the following criteria in order for a policy to be upheld:
- The policy is not inconsistent with the collective agreement
- The policy is not unreasonable
- The policy is clear and unequivocal
- The policy is brought to the attention of employees
- The policy warns of consequences for non-compliance
- The policy is consistently enforced
The challenge with vaccines is that they pose a conflicting battle of rights. As of today, nearly 81% of British Columbians have received at least one dosage. Whereas the Union is sympathetic to the right of a person to choose for themselves, 4/5 people in the workplace will view a colleague’s choice not to get vaccinated as problematic. They would not be pleased that the Union is taking a position that places them and you at risk.
On the one hand, employees have a right to privacy, and to bodily integrity; on the other, the Employers have a statutory requirement to provide a safe and healthy work environment to their employees.
Therefore, much of the anxiety about the provision of vaccinations is understandable, but really needs to be placed into context. The Employers believe that the balancing of rights and interests would, on the whole, tilt the balance in favour of safety, and they are probably right.
We have taken no position, however, and reserve our right to grieve should it become necessary.
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