GM Membership – Chair Report
October 17th, 2021
I want to make it clear to those who choose to either remain undisclosed or unvaccinated for personal reasons, that even though the National President of Unifor and the National Executive Board have spoken out in support for mandating vaccinations, your Local Committee will continue to do all we can to represent ALL of you! We will continue to work with the Company to ensure everyone’s safety in the workplace and we will continue to fight and advocate for ALL to have the ability to come to work.
Many have questions and concerns about what the Mandatory Vaccination & Reporting Policy means to them for their own circumstance. From the feedback that YOU, the membership, have begun to express to myself, the Shop and Benefit reps and through the Facebook group with President Jordan Lennox, I am gathering concerns to present to the Company. Hopefully the Company can provide answers to these questions and concerns quickly. We have also been advocating for alternative options for site entry such as rapid testing other than discipline for noncompliance to the policy.
You should also know the Company has no contractual obligation to consult the Union before making their policies, contrary to what some may think on Facebook. They will assert the ‘right to manage’ under the collective agreement. And they are not obligated to hear the concerns of the Local Union after they implement a policy but that doesn’t stop the efforts of this Local Committee from trying!
The Local Union has several recommendations and concerns regarding the policy’s implementation, and we will continue to work to ensure the implementation of the policy protects the health and safety, and human rights of our members while ensuring their rights to privacy are respected when it comes to the reporting portion of the Policy. We will keep our members informed as developments arise.
These types of Mandatory Vaccine Policies in the workplace are the first of their kind in our Country. And while government & businesses start to exercise their ability to implement these policies based on the standards of reasonableness of the KVP test, they have yet to be challenged and ruled upon in arbitration. As a result, there is limited case law available. Until an arbitration decision is made (if its made) against mandated vaccination policies our members need to be aware that if you choose not to get vaccinated or not to disclose your vaccination status for personal reasons then you must understand the risk and the consequences associated with that position for not complying. And the only right we have available to us in our collective agreement is the right to grieve.
I am telling you this because this case will most likely end up in the Supreme Court. That process could take years and there is a strong possibility according to Unifor and other legal opinions the policy will withstand legal challenges that will be put forward before the courts.
Additionally, employers have a legal obligation to keep workplaces safe and, in the context of a global pandemic, as we already know the federal government requires employees be vaccinated.
Case law has yet to be settled regarding requiring mandatory vaccinations for employees in the workplace, so please note that these FAQs and my responses may change as circumstances evolve.
Many employers have begun implementing mandatory vaccination policies that will require their workers to return to the workplace, fully vaccinated. The list of employers continues to grow weekly.
The underlying rationale is straightforward. Vaccinated employees are less likely to become infected and to transmit COVID-19. It simply is a reasonable precaution to take for the protection of the workplace.
Legality of mandatory vaccination policies
Employers must take every precaution reasonable to protect their workers.
That is set out in the Occupational Health and Safety Act, R.S.O. 1990, c.O.1. Given that, and recognizing that workplaces throughout the pandemic have been flashpoints for transmission, surely employers are reasonably required to take those steps that are available to them to limit transmission, including requiring workers to be vaccinated.
As well, the regulations under the Reopening Ontario (A Flexible Response to Covid-19) Act, 2020, S.O. 2020, c.17, require businesses to operate in compliance with recommendations, instructions and/or advice that are given by public health officials.
Challenges of implementing a vaccination policy
There are many challenges when faced with mandatory vaccination policy such as this, and some of those challenges we are facing is determining the consequences of choosing not to comply. For example, some workers may refuse vaccinations on principle. In that situation, employers will either have to accommodate those employees by allowing them to work remotely, or if that is not possible under “undue hardship”, they may be terminated. Since Case law has not yet developed on this point, and it may well be that terminations will be without cause, with notice.
Numerous legal opinions are clear that an employee has a right to decline to be vaccinated. However, if the policies mandating vaccines are deemed reasonable, which most experts agree is far more likely than not in many workplaces, workers who choose not to be vaccinated will likely face serious employment consequences. These may include being held out of work without pay or even dismissal from employment. The Union will need to turn its mind to each case where disciplinary action is taken to determine what, if any, steps are likely to result in a remedy, but workers need to be made aware that such policy decisions will be difficult to overturn in many workplaces.”
The Company however has stated non-compliance to their policy could result in discipline up to and including discharge. If discharge were to occur for failing to comply with a Health & Safety COVID Policy of the workplace, the Company would consider that discharge to be “with cause”!
Is EI an option?
Anyone discharged “with cause” would be ineligible for EI benefits according to Employment Canada. But you still have a right to apply for benefits. After checking with Vince Filice in the EI office, the only option available at that point would be to apply for sick benefits which requires a medical certificate. “If accepted” – you could have up to 15 weeks coverage.
If you are unable to be vaccinated due to a certified medical condition, religion, or another prohibited ground of discrimination as defined under the Canadian Human Rights Act, and are requesting accommodation, you will be required to provide supporting documentation to the HR Department.
Supporting documentation may include:
- Documentation from the employee’s medical physician or nurse practitioner setting out grounds for not receiving or for delaying the COVID-19 vaccine and specifying whether the reason is permanent or time limited.
- A sworn attestation (signed before a commissioner for taking affidavits) containing detailed information about the sincerely held religious belief and doctrine that prohibits full vaccination.
- An attestation of the details regarding one or more of the prohibited grounds of discrimination under the Canadian Human Rights Act that renders the employee unable to be fully vaccinated.
Some workers may not medically be able to be vaccinated, which will trigger human rights obligations. In those cases, accommodation may have to be provided.
Question – What will constitute a medical exemption?
Answer – Ontario’s rules for its vaccine certificate program are that only those with an allergy to an ingredient in the vaccine — verified by an allergist — or those who suffered from myocarditis or pericarditis after their first dose should be exempt.
What may justify exemption under mandatory workplace vaccination policies has yet to be determined. All we know for certain is that with proper documentation, appropriate accommodations should be made.
Similar concerns may also arise with respect to employees who refuse vaccination on religious grounds.
Considering the lack of case law to go by AND the length of time before an arbitration decision is made, AND the fact that Unifor Legal has expressed the policy will likely withstand legal challenges. Unless you have legitimate medical reasons, or reasons protected by human rights grounds, the situation has now been made clear and presented to the membership for them to make their own choice.
The Government and the National Union encourages its citizens and members to get vaccinated. Vaccination is a key public health tool to keep you, your community, your family and your co-workers safe.
If you choose not to get vaccinated for personal reasons, and you understand the risks and consequences associated with that position then we will uphold your right to grieve!
All indications are that this is the way of the future and the requirement to be vaccinated will likely be a condition of employment elsewhere.
In the coming days ahead as I get more answers to questions regarding site entry questions, the survey, privacy in reporting concerns, accommodations, ect I will communicate them to those in plant and through the Facebook Page and Website.
Trevor Longpre, GM Unit Chairperson
On behalf of the Bargaining Committee
Ken Naldjieff, Glenn Currie, Kevan Anderson, Bill Newburgh
UNIFOR Local 199