September 20, 2021

Vaccine mandates put unions in a delicate spot: They encourage members to get the jab but seek to protect those who don’t


The union representing federal public service workers says it supports immunization requirements to keep workplaces safe — but says employees should be offered reasonable accommodations if they can’t or won’t get the COVID-19 vaccine.

Vaccinations for public servants and workers in some federally regulated sectors like airports and Crown corporations will be mandatory by fall, Ottawa announced last week — a commitment to “playing a leadership role by further protecting the health and safety of public servants and the communities where they live.”

The Public Service Alliance of Canada supports that position, as part of its advocacy for safe working conditions, national union president Chris Aylward said in an interview.

“The scientific research is very clear that vaccinations work and we want to make sure that our members are safe, our workplaces are safe and our communities are safe,” he said. “And obviously the best way to do that is through vaccinations.”

But discipline for unvaccinated workers rather than exploring alternative accommodations is “totally unacceptable,” he said.

While worker safety is a foundational principle for unions, the pandemic is in some ways new territory, said Colleen Bauman, a partner at Toronto-based labour law firm Goldblatt Partners. Vaccination policies didn’t previously feature as prominently in health and safety thinking, but are now “very much part of the discussion,” she said.

So why seek accommodations when a measure makes workplaces safer — and could potentially save workers’ lives?

Sometimes those demands arise because of the specifics of how a policy, even one with positive goals, is implemented in a particular workplace, said Bauman.

That is where PSAC has “more questions that we do answers,” said Aylward. “We’ve yet to see any kind of an implementation or rollout plan from the government.”

Aylward said fully vaccinated union members have expressed fears about potentially working alongside the unvaccinated, especially in light of a looming fourth wave and risk of more severe illness associated with the Delta variant.

Asked how to reconcile those concerns with vaccine-hesitant members, Aylward said the union is encouraging everyone to get vaccinated but believes accommodations like remote work and job reassignment should be explored for those who haven’t.

“Of the 160,000 members that we represent in the federal public service, three out of four … have been working from home since the start of the pandemic. So remote work is effective.”

Grappling with workers’ individual rights and the collective harm that a workplace outbreak would cause — all without falling afoul of the law — is a complicated task for employers and unions alike.

“Given the fraught nature of vaccine mandates it is not terribly surprising that the PSAC has taken this position,” said Alison Braley-Rattai, assistant professor of labour studies at Brock University.

In Ontario, too, health-care and education workers must now either be vaccinated or take regular COVID-19 tests. Exemptions exist for those with medical reasons to not take the vaccine; those who choose not to take it must complete an educational session on the topic.

On Tuesday, the Elementary Teachers’ Federation of Ontario voted to support mandatory vaccines and called the province’s new vaccine status disclosure requirements too weak. In a statement, the union also said that “transparent processes must be established, in consultation with unions, to determine how the vaccination requirement could be implemented fairly within the education sector.” That includes accommodation for those with medical issues or religious objections.

Vaccine mandates “should make provisions for those legally entitled to accommodation,” said Braley-Rattai. “Accommodation is not an absolute right, but it would be difficult for a given employer to demonstrate that there was no safe accommodation possible.”

In the past, labour arbitrators have sometimes struck down mandatory vaccine policies if they were too coercive and didn’t provide employees “with some form of choice whether or not to be vaccinated,” notes Bauman,” although that choice “may entail some consequences” for workers.

In other cases, employers’ vaccine requirements have withstood legal challenges because they allowed for accommodations like unpaid leaves for workers who did not get flu shots.

What is considered reasonable depends on the facts on the ground. This includes medical evidence, the effectiveness of possible alternative safety measures, workplaces’ operational needs, as well as “specific factors in the way in which (a policy) is being implemented” such as consistent enforcement and reasonable accommodations, said Bauman.

Vaccine skepticism is “not legally recognized,” added Braley-Rattai. “A choice to accommodate this group would follow different considerations.”

Unions have a duty to provide fair representation to members — although what workers may think is fair is not necessarily the same as what they are legally owed by their union.

“Unions should be consulted to help develop reasonable vaccination policies,” said Braley-Rattai. “Once that is done, unions should undertake their usual duty to represent members against the backdrop of that policy … if a member is disciplined for violating the policy the union must still ensure that the proper steps were taken, that the discipline is proportional, that it is consistent with the collective agreement and so on.”

While Bauman said she is not aware of any active legal challenges to vaccine requirements in Canada, there has been a smattering of related cases that so far suggest that compulsory COVID precautions are likely reasonable if applied fairly.

Recently, for example, the Christian Labour Association of Canada filed a grievance on behalf of retirement home workers in Woodstock, challenging the “reasonableness” of a mandatory bi-weekly testing regime. The union lost, because the arbitrator ruled the goal of infection control outweighed the “intrusiveness of a (COVID-19) test.”

Outside of Canada, a federal judge in the U.S. sided with Houston Methodist Hospital after its mandatory vaccination policy was challenged by 116 workers who claimed they would be unfairly terminated if they did not comply. (Some 62 workers have now filed a wrongful termination suit against the hospital.)

That approach may limit the health and safety risks posed by unvaccinated workers. But Aylward said while he wants union members to get vaccinated, PSAC must “work with members who are unable or unwilling to get vaccinated to make sure that their concerns and their issues are addressed as well.”

“The last thing that we want to see people being ostracized.”





Source link