Recently, our largest unit General Motors has begun implementation of a mandatory vaccination policy. I understand that there are many questions arising from this announcement and I want to take a moment to provide some legal clarity to the membership. I also understand that this is arguably one of the most polarizing situations of our lifetimes, which is why I believe it is my obligation to provide as much information to the membership as possible. The following document is an analysis of COVID-19 Mandatory Vaccination Policy information. It examines Human Rights, Disability and Accommodation, Policy Evaluation, Charter of Rights and Freedoms, Testing and Alternatives, Privacy Rights and Medical/Religious Accommodation.
COVID-19 Vaccination Policy Information
As a Union we recognize that this is a challenging time for our membership. It is challenging for those who are vaccine hesitant and those who are anti-vaccination. It is also challenging for those who think people should follow Public Health guidelines and get vaccinated, which is something rarely talked about. This document is designed to inform and provide guidance to assist with the decision-making process pertaining to a refusal to get vaccinated or refusal to provide a vaccine certificate to your employer. Our view has always been that it is our responsibility to make sure the membership is aware of the likelihood of the consequences that will flow from the decisions that they are going to have to make. That said all our advice is based on our understanding of what is likely. This is important as those members that are fired by the Company are likely to stay fired.
The Union recognizes that the law has not spoken on all aspects of COVID policies. That said, we can find guidance in the principles of various cases where there is law or arbitration rulings. They do provide us with direction and an informal understanding of what is and what is not. We are seeing an increasing number of employers implementing COVID-19 vaccination policies and those policies are not all the same. Most have variations and it is important to note there are features that are essential to acknowledge and are necessary in these policies.
Most of the policies require a worker to provide personal information. This requirement has generated complaints in terms of privacy and this document will speak about that. There are common features, like accommodation rights, and they are necessary in a policy. The two primary talking points are about legislation or disability accommodation and potentially religious accommodations including how you look at undo hardship and what that looks like.
Some policies provide alternatives to mandatory vaccinations, and some do not. Many are very clearly suggesting that termination of employment is a consequence that may arise, while others are suggesting an unpaid leave of absence. Others are suggesting an educational component and testing. You will see the policies vary across sectors.
There are laws that protect people who can legitimately claim a human rights exemption. To be clear, this is not as easy as people seem to think. The fact that you are human, and you have rights does not make yours a human rights case. You must have a tie into the code to claim its protections, however, absent that the human rights code will not apply.
When you look at these policies you must look at facts and the context. What may apply in one workplace may not be the same in another workplace. We know that in places where there are vulnerable populations, such as hospitals, other health care settings, education settings, etc. what is reasonable may differ compared to a workplace where an employee is not in the public or interacting with other people. There is going to be a spectrum of reasonableness and that will be part of the assessment of the policy because each policy must be assessed individually. As will any discipline that arises because of refusal to abide by the policy.
We all know some people do not like this very much and the Union understands why because when we are presented with a forced choice, it does not seem like it’s a real choice. It’s important to note you have a choice. You can absolutely choose not to be vaccinated and no one can force you to be vaccinated, however if you decline to be vaccinated it does not mean that no consequences will flow from that.
Human Rights
Human Rights obligations continue to apply in relation to these vaccine policies. An employer cannot introduce a vaccine policy that is discriminatory on a human right protected ground. It is important to understand the difference about alternatives built into vaccination policies which are voluntarily put into the policy by an employer. They are already built in, and you are automatically entitled to them. In some of these policies, for example, it might be that you can work from home.
Some other examples of built-in alternatives for those who choose not to be vaccinated may be continued mask wearing or regular testing. Please note that this is not always the case, and in many policies the requirement is to be vaccinated and there is no built-in alternative. There would still have to be a basis for accommodation as required by human rights statutes. An employer always has a duty to accommodate, but the duty is only triggered when someone experiences an adverse impact because of a protected ground pursuant to human rights legislation. The protective ground that would come into play in the context of the vaccine policy would be disability or religion. It is important to keep this distinction between built-in alternatives and duty to accommodate separate. The Ontario Human Rights Commission has produced a policy document and they have emphasized that only certain people are entitled to accommodation based on human rights.
Not everything is discrimination. A person who chooses not to vaccinate based on personal preference does not have the right to accommodation under the code. The need for accommodation must be based on a protected ground. It is limited in its accommodation the employer must provide and it is accommodation to the point of undue hardship. What constitutes undue hardship in any case may vary as it depends on the circumstances of both the accommodation and the undue hardship. Contextually, what is an appropriate accommodation in one workplace may not be in another. What constitutes undue hardship in the context of a global pandemic or in the context of the fourth wave we are experiencing now, is different than what would be undue hardship under normal circumstances.
The important thing about accommodation to remember is that it is not going to be perfect, and you are not entitled to what you want as a form of accommodation. It is not a “make whole” remedy and it really depends on varied factors such as the size of the workplace and the job that the person is performing, the number of employees at the workplace, the nature of the work, and possibility of working from home. You need to understand the potential harm to an employer’s reputation should there be an outbreak, as that is also a factor.
The parameters of undue hardship must consider the impact of your accommodation, or an individual’s accommodation, on everyone in the workplace and the impact on the public. When examining whether an individual can be accommodated and whether accommodation would constitute undue hardship it must be noted that in many cases accommodation may not be possible.
Disability and Accommodation
In terms of disability, keep in mind that the duty to accommodate is only triggered when a person can establish that they have a protected characteristic. If they claim to have a disability it must be established by the person seeking the accommodation. They must show that the vaccination policy has an adverse impact on them.
It must be established that the adverse impact is connected to their protected ground. For example, there is somebody who is saying that they cannot get a vaccination because they have a heart condition. That person must go to their physician, or their nurse practitioner, and establish that they cannot be vaccinated as it is medically contraindicated (a reason for a person not to receive a particular treatment). It is clear from that example that the adverse impact is connected to the protected ground as you would otherwise get the vaccination, but medically cannot and now it is affecting your job. That is where discrimination occurs and the right to accommodations is triggered.
In terms of the type of accommodation that may be possible or if a combination is possible, it would vary depending on the workplace. The context of accommodation may be different during a global pandemic, but the logic remains the same in terms of the level of proof and what triggers a request for accommodation. These things are going to be assessed on an individual basis.
Evaluating Exemption Policies
The Ontario Ministry of Health has released a guideline for exemptions based on medical reasons. The documents that will be required are quite detailed, at least as far as the disability claims. If you are claiming that you are seeking an exemption on a medical basis you must be prepared for employers to demand quite detailed substantiation of the disability. Also, it is particularly important whether it is a permanent or temporary impediment to getting vaccinated.
There is going to be a high bar for people, and they need to understand that. People who have had an adverse reaction to the vaccine are still not contraindicated and public health will provide the vaccine in a unique way. For example, instead of getting the second vaccine in a clinical setting with mass vaccinations they may suggest going to hospital and having smaller doses of the second vaccine. Vaccine exemption is significant and the fact that you have an underlying disability may suggest that the vaccine is more important, not less.
Vaccine Policies
There is a question whether there is a basis to oppose these policies. These are unilaterally imposed employer policies that the Union has not signed on with and we have not consented to its being introduced by the employer. The employer is entitled to implement policies pursuant to the management rights clause in most collective agreements. They do not have to seek the Unions input or consult with the Union. However, the policies are subject to a general reasonableness standard and that is the standard that arbitrators will apply when looking at these policies and judging them. The standard for such cases of reasonableness is a test for unilaterally introduced employer policies known as the KVP Test. The components of the KVP test are the following:
The policy must satisfy the following conditions:
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must have been notified that a breach of the rule could result in their discharge (if the rule is used as a basis for discharge); and
6. It should have been consistently enforced by the company from the time it was introduced.
The second requirement – The policy or rule be reasonable – is the core of the KVP test and must be carefully applied to the facts of each case. Policies that arbitrators have found are reasonable in some other workplaces, or even in most other workplaces, might not be reasonable in your own workplace. The answer will depend on the extent to which the rule or policy interferes with the interests of each affected employee group. Unions will, therefore, be diligent in assessing the effect of every unwelcome policy or rule on the interests of the affected employee group.
When Unilateral Management Policies are Invalid
For many years, labour arbitrators have interpreted management rights clauses in a purposive rather than a literal manner. This means that even management rights clauses, that on their face give employers absolute power, are “read down” to require that the exercise of those powers be ‘reasonable’. In short, most arbitrators have interpreted collective agreements as implicitly authorizing only ‘reasonable’ management action. After initial judicial resistance, this approach has come to be accepted by the Courts.
Arbitrators devised a test to determine when unilateral employer rules or policies are enforceable by discipline. Named after the 1965 case in which the test was first articulated, the KVP test requires that to be enforceable, a policy or rule unilaterally introduced by the company, and not agreed to by the Union, must adhere to the above parameters.
‘Determining reasonableness requires labour arbitrators to apply their labour relations expertise, consider all the surrounding circumstances, and determine whether the employer’s policy strikes a reasonable balance. Assessing the reasonableness of an employer’s policy can include assessing such things as the nature of the employer’s interests, any less intrusive means available to address the employer’s concerns, and the policy’s impact on the employees’
The question of reasonableness is very fact specific. The Union must look at what kind of employer you have, what your job is, and how it is done in terms of assessing the application of the policy to a particular worker. This is challenging as the answer to what is reasonable may change over time. We must think about what it looks like where we work and where we live. What are the indicators in terms of public health direction and what rights are they providing?
We need to keep in mind that in cases like this the court has very clearly stated they are not able to second guess public health employment rights. The advice of these experts who are providing public health directions are devoted to the global pandemic. The Union does not think we are going to see a different response from arbitrators.
That is not to say that an arbitrator will not consider the law in the Charter of Rights if they are applicable or the reasonableness of the policy, but decision makers are going to be looking to the global context. They are going to be looking at pronouncements from public health authorities and those are going to have a profound influence on the decisions that they make when examining the reasonableness of the policy.
In a factual context, COVID-19 vaccination policies are supported by a series of directives and recommendations from public health authorities directing people to get vaccinated and directing employers to institute a vaccination policy. We also have a great deal of information about scientific studies regarding COVID-19 and evidence about the efficacy of masking, the spread of COVID-19 and the asymptomatic spread of COVID-19. The Kaplan award is useful to look at it and you can gain insight into how arbitrators may rule. Kaplan said if the vaccination policy prevented patient illness and saved patient lives its reasonableness would be difficult to challenge.
Challenging these Policies
The question is are we challenging the policy or are we challenging the application of the policy? Unifor’s advice has been consistent in deliberately challenging the application of the policy and the consequences that might result. Unifor took a position early on because we understood the weight of public health advice and the context of a global pandemic. It is important that we acknowledge that because it will be a question that will arise. Members want to challenge the policy and absent facts; we do not really have a lot to challenge. The National Union thinks it would be quite easy for an employer to justify introducing a vaccination policy.
Where the employers may fall short is in the application of a policy. Especially if it does not have any acknowledgement that there is a duty to accommodate or any provision allowing for exemptions that are established that would be a problem. What is ‘reasonable’ will depend on the facts.
A frequently asked question is if you refuse to follow a policy what happens next? Please keep in mind that we are not speaking about any specific policy but speaking in generalities. There are policies, however, that suggest that if you decline to be vaccinated or refuse to provide proof of double vaccination then an employer may provide you with an alternative like testing or working from home etc. We need to keep using the language of accommodation versus alternatives because alternatives are not legally required, and accommodations are legally required.
When people suggest testing is a violation of someone’s rights, we can look to several significant cases on testing within the context of the pandemic. One such case was in a nursing home called Crescent Care. There was a challenge to the testing policy and all the arguments you would anticipate or could be made were made. The arbitrator made a clear decision that this is a reasonable action during a pandemic. He also stated that this case is being followed in every other decision related to testing. It speaks to the mindset of decision makers on testing during the pandemic.
A few members have suggested that requiring testing was a breach of their human rights and it is not. It is a question of balancing health and safety and your privacy rights. It is important that we keep in mind that this is all in the context of not just a global pandemic, but the fact that unvaccinated people are in workplaces with people who are vaccinated.
The Health and Safety Act states you must take every reasonable precaution in the circumstances. If employers do not impose testing and do not require vaccination there’s potential liability for employers in terms of not taking reasonable steps to protect the health and safety of the workers.
Employers are being held to a higher standard in terms of novel viruses (a virus that has not been previously recorded) so their judicial decisions reflect this. If employers did not take alternative steps, then they would be potentially in very significant legal hot water.
Charter of Rights and Freedoms
It is important to note that the charter applies exclusively to government action. It does not apply to a private employer in the action of in introducing a vaccination policy.
The biggest section of the Charter that is most often raised as a basis for opposing the vaccination policies is Section 7. This section of the Charter states everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In terms of Section 7, courts and tribunals have found the rights protected by this section of fundamental personal choices. For example, choices about physician assisted suicide, abortion, and medical care are rights the Charter protects. Unfortunately, Section 7 of the charter does not protect economic rights.
If you choose not to get a vaccination and as a result there are job consequences for you, either paid or unpaid leave, termination, or you are otherwise disciplined affecting your economic rights there is no protection under Section 7 of the Charter. You are not being forced to be vaccinated. The vaccination policies offer employees a choice. You can choose not to get vaccinated and there will be consequences that follow. It is understood that this is a hard choice, but it has been ruled it does not amount to coercion. A policy is not arbitrary if it is not overly broad. If it is not grossly disproportionate it will be found to be in accordance with the principles of fundamental justice in Section 7. You would have to look at the policy itself but in general Section 7 imports are reasonable in this analysis.
In the unlikely event you manage to establish that your rights are infringed upon under Section 7 and Section 2, that infringement can still be justified pursuant to Section 1 of the Charter. Section 1 of the Charter provides that none of the rights in the Charter are absolute.
Section 1 reads: the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Courts apply the “Oakes test” to determine Section 1 justification. The Oakes test is a legal test created by the supreme Court of Canada in the R v Oakes case (1986). It determined that Charter rights are not absolute and can be infringed upon if the Courts determine that the infringement is reasonably justified. There are four parts to this test, the first being whether the piece of legislation or government action has a pressing and substantial objective.
In terms of the vaccination requirements this part of the test could be easily met given the current state of the pandemic, the 4th wave, public health directives, and the advice from scientists and experts. There would be a pressing and substantial objective to requiring vaccination. The second part of the test is the means chosen and whether they rationally connected to that objective. That would be easily satisfied as there is a great deal of scientific evidence confirming the benefits and efficacy of vaccination in reducing the spread and preventing a fifth wave. The third part of the Oakes test is that the disputed legislation would impair rights and freedoms as minimally as possible. If a particular policy in question includes human rights exceptions and applies the least intrusive measures possible then the Union believes there would be little difficulty in satisfying this part of the test. The final part of the test is proportionality so that the negative effects of the requirement of the policy and the legislations are proportionate to the positive value of the objective. The objective here is to prevent the spread of the virus and the negative effects are people who do not want to get vaccinated.
The Union believes the positives outweigh the negatives. A policy likely would be able to establish the positive effect of avoiding serious illness or death. As a result, such a spread of COVID would outweigh the negative effects on individuals who do not want to get vaccinated. Even if you could establish that there is a violation of a Charter Rights it would be justified pursuant to Section 1 of the Charter. It would also satisfy the Oakes test under Section 1.
This is what an arbitrator’s going to be grappling with. They are going to rely on government and on public health authorities in assessing the reasonableness of these policies, and it is going to be very difficult to get credible experts who are going to argue any differently. It is unlikely that these policies will be overturned, and most Charter challenges will prove unsuccessful.
Testing and Alternatives
There are many questions about testing. Should testing be considered as an alternative? The Union can ask for whatever measures it wants to, however, whether the employer is required to do it is a completely different question. There is little downside asking for extra measures or alternative measures where it is appropriate in the circumstances. The Union does not have a right to demand these alternatives and if an employer says no, the Union does not have recourse except filing a grievance.
If your employer demands that every seven days you get evaluated and tested, with the expectation that you pay for it and do it on your own time – is it undue hardship?
To be accommodated under undue hardship you must show a claim under the code. You may be subject to testing if you are declining vaccination because you do not want to vaccinate. In this case the undue hardship issue is irrelevant because you do not have the protections of the code. Protections under the code only become relevant to a very small subset of people who are adequately and appropriately claiming under the code. In those situations, the Union would look carefully at each case. There may be an argument that will apply to a very small subset of people, however, the argument an employer will exercise to avoid accommodation will be that they have reached the point of undue hardship. It should also be acknowledged that some government action has been taken in this regard. The Federal government has mandated vaccines in certain industries. Therefore, the Union does not think there would be a successful Charter argument.
Teleworking from Home
The Union may challenge the policy on the basis that it is unreasonable since these people are working from home. There may be an argument that there is no risk in the workplace because they are working from home. Again, the argument would be based on whether it is reasonable given the workplace.
Unfortunately, it would seem the goal for most employers is to get everybody back to work. It is important to remember that an employer still has a right to manage its workforce and its workplace. If an employer wants employees back at work that may not be an unreasonable demand. The Union must always examine the application of the policy. It must be assessed to determine if it negatively impacts someone’s rights. It is not a question of if a policy “is always unreasonable or always reasonable”. The Union must assess the context, understanding that it may well be that employers are entitled to require their workers to be at work. Especially if it does not arise in the context of an accommodation claim.
Privacy Rights
Many employees also want to know if they are working with others who are double vaccinated. You do not have right to know. However, if you have specific concerns, for example: If you are somebody who is at higher risk because you are amino suppressed, and the vaccines might not work as well for you then it is certainly important that you advise your employer so that they take reasonable steps to ensure your safety. It is challenging because you do not have a right to other people’s medical information.
Is there a requirement to disclose your vaccination status? Yes, if it is in the Company policy. It is justified, at least as far as adjudicators and arbitrators have found. Privacy over medical information is not absolute and that is something to be remembered. The disclosure of vaccination status would be easily justified as necessary to achieve public health purposes.
The Company must ensure those adequate protections are in place so that the information is in a safe data storage, with restricted access. This is called data minimization. The least amount of personal health information is contained. With those protections in place revealing your vaccination status is not considered to be at the high end of the spectrum. Adjudicators would determine this information sharing to be at the low end of the spectrum. To be clear, asking for a vaccine certificate will not likely be overturned in any workplace. They need to know your name, the date of your vaccination, which vaccine you received, and if you are fully vaccinated.
Is it an infringement of your privacy rights to provide information when you are seeking accommodation to substantiate your need for accommodation? Yes, that could infringe on your privacy rights, but it is not unlawful. It is justified at least as far as adjudicators and arbitrators have found. Privacy over medical information is not absolute.
Religious Exemptions
There are many cases already that examine ideological opposition or stress to vaccines not being enough to create code-based protection. An employee is going to have to produce evidence that they have a sincerely held religious belief and that there is a valid connection to that belief and a religion. Most of the decisions follow a case called Absalom from the Supreme Court of Canada which explores the sincerity of that belief. If it’s something that’s new and not connected to any other beliefs or practices, it’s going to be a challenge.
It is also important that people know if they are going to make such a claim, they are going to have to substantiate it in some way. They are also going to be subject to an employer being allowed to test whether that belief sincere or not. There is another case on this exact issue where a “Loblaws UFCW Local” member claimed that they could not work Sundays because of their honestly held religious belief. They were dismissed because they could not actually find a connection between the belief and the religion itself. It is not as simple as just asserting a claim and saying, “I have a disability” or “I have a religious belief”, you are going to have to support it with documentation and that is going to get called into question. The reasonableness of the questioning is going to depend on the quality of the documentation provided.
Section 2 of the Charter is also commonly raised, which relates to freedom of conscience and religion. In terms of freedom of conscience, interestingly this is an almost never used section of the Charter and there’s very little jurisprudence about it. It is rarely considered by courts or tribunals, and it is often equated with religion. Essentially, what freedom of conscience has been taken to mean is a commitment to a belief system, which could be a secular belief system, a closet religious belief system, but must be based on a set of deeply held convictions.
Personal preference against vaccinations does not constitute freedom of conscience. While Section 2B has been raised as a potential tool, it is not particularly helpful because Section 2B deals with freedom of thought, belief, opinion, and expression. These vaccination policies do not implicate any of those. You can have a negative opinion about vaccines, and you can tell people about your negative opinion. You can express yourself and you can still be subject to a vaccine policy and can still be required to get a vaccine by your employer.
There was a freedom of religion case where the court stated very plainly that freedom of religion is subject to such limitations as are necessary to protect public safety and fundamental rights and freedoms of others. There are decades of jurisprudence that speak to the importance about a necessary balance between rights and freedoms and public good. We cannot just think about what our rights are, we must think about the way a right can conflict with other people’s rights.
The Union must make sure that employers do their job correctly. If the claim is for religious accommodation, then it is up to the employer to assess each one of those on an individual basis. They must determine whether there is a sincerely held religious belief or whether there is access to a faith. If it is not something that is common practice in your faith on the day-to-day basis, it is going to be a challenge.
I will reiterate – the Union will grieve each individual case of discipline arising from the implementation of a vaccine policy. However, it would be irresponsible of me not to clearly inform membership the potential negative consequences of a choice they may make prior to having to make it. I understand that members are upset that this situation has developed and I hope that this article sheds some light on the legalities of these types of policies.
Stay healthy and safe.
In solidarity,
Jordan Lennox, President
Unifor Local 199