With the rollout of vaccinations across Canada, employers are turning their attention to reopening offices. We will continue to keep our members informed as developments arise.
We must also stress that the case law has yet to be settled regarding requiring mandatory vaccinations for employees in the workplace.
We’ve compiled frequently asked questions to provide PSAC members with as much information as possible on vaccinations in the workplace.
If you have any other questions or concerns about COVID-19 and your rights at work, reach out to your local shop steward, component union or PSAC regional office for help and support.
- What is the status of the federal government’s mandatory vaccination policy?
- The federal government released its vaccination policy for federal public service workers October 6, mandating vaccinations for all employees in federally regulated workplaces, including more than 160,000 PSAC members.
All public service workers in core agencies must be fully vaccinated against COVID-19 by Friday, October 29, 2021. Public service workers who are unable to provide proof of vaccination will be placed on un-paid leave by November 15.
Read PSAC’s statement in response to the federal vaccination policy.
- Can my employer ask me for my vaccination status?
- Yes, if this is part of the return to the office plan for employees. The Ontario Human Rights Commission (Question 5) said, “The requirement to wear a mask or prove vaccination may represent a reasonable and bona fide requirement for health and safety reasons, especially when serious risks to public health and safety are shown to exist like during a pandemic.”
The Commission des droits de la personne et des droit de la jeunesse in Québec also noted that, although vaccine mandates infringe on certain rights and liberties protected by the Quebec Charter (Article 9.1), these mandates imposed by governments may be justified — especially in certain sectors like the health sector.
According to the Office of the Privacy Commissioner of Canada, employees have the right to medical privacy and any personal health information that is collected, used, or disclosed must comply with applicable privacy laws. Employers should also limit their questions to gather only the information that is strictly necessary. However, where a mandatory vaccination policy has been implemented for a legitimate purpose and in a reasonable manner, arbitrators have found the collection and disclosure of vaccination status is permitted because it is the only means of administering and enforcing that policy.
- Can my employer require me to be vaccinated?
- No one can be physically forced to get a vaccine against their will. However, employers have an obligation to keep workplaces safe and, in the context of a global pandemic, may require employees to be vaccinated to continue to work.
Given the Government of Canada has recently announced that it will require vaccination for employees in the federal workforce and the federally regulated transportation sector, it is very likely that we will see more employers adopting mandatory vaccination policies. This is especially true as provincial jurisdictions such as Quebec, Ontario and B.C. introduce vaccine certificates or passports to access certain non-essential public services or establishments.
The duty to accommodate only applies if an employee is unable to get the vaccine for grounds listed in human rights legislation, such as disability or religious belief. If an employee is protected by one of these listed grounds, the employer must work with the employee to identify possible accommodations, which may include allowing the employee to work from home for the foreseeable future. For front line staff, such as corrections officers, possible accommodations will depend on the specific situation and workplace of the employee.
For employees who have elected not to be vaccinated thus far due to personal beliefs, the situation is much more complicated, since there is no legal obligation for the employer to accommodate the employee. For instance, both The Ontario Human Rights Commission (Question 5) and the British Columbia Human Rights Commissioner (Page 10) have stated that a belief or personal preference against vaccinations or masks is not protected under their respective Human Rights Code.
Even those working remotely are required to be vaccinated.
- Can my employer discipline or terminate me for refusing to be vaccinated?
- An employee has the right to refuse to be vaccinated but they may end up suffering the consequences of their decision, including being placed on leave without pay or even an administrative termination.
Some arbitrators have suggested that applying alternative health measures, such as mandatory masking, may be appropriate where employees refuse to be vaccinated, if it can be shown that this would effectively reduce the risk of transmitting COVID-19.
Similarly, temporarily changing an employee’s work arrangement to limit or eliminate contact with others or placing them on temporary leave with pay as a last resort, has also been upheld. However, in other cases, arbitrators have found that unpaid leave was an appropriate consequence for refusing to comply with a mandatory vaccine policy.
Past legal decisions for front line workers relating to safety measures, such as wearing personal protective equipment (PPE), have strongly leaned towards endorsing public safety measures. Any outcome would depend on several factors including whether the employee can work from home, if there are alternative safety measures available, and if leave options are available.
The employee should always demonstrate that they are willing to work with the employer to explore options such as continuing to wear PPE or accepting alternative work arrangements. Grievances should be filed immediately if a member is disciplined or terminated.
While the vast majority of PSAC’s membership is fully vaccinated, PSAC will continue to represent unvaccinated members who have punitive action taken against them as a result of their vaccination status.
- Will PSAC represent me if I choose not to be vaccinated?
- Unless you have legitimate medical reasons, or reasons protected by human rights grounds, we strongly encourage members to get vaccinated. Vaccination is a key public health tool to keep you, your community, and your colleagues safe.
If you choose not to get vaccinated for personal reasons, PSAC will look at your case and – if your human rights or workplace rights are being violated – PSAC will support you.
But there is a strong possibility that the government’s policy will withstand legal challenges that might be put forward, so the best and safest thing to do is to get vaccinated.
- Do I need to be vaccinated if I’m working remotely?
- Yes, the federal government’s vaccination policy applies to all employees in the core public service, including the RCMP, CBSA, Correctional Services and employees working remotely. According to the Federal government, all employees may have to attend scheduled meetings or events, access sensitive information, or address urgent operational requirements.
- What are the next steps?
PSAC has several recommendations and concerns regarding the policy’s implementation, and we’ll 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.