IN RESPONSE TO THE EMPLOYER’S VACCINATION POLICY
The union has filed a policy grievance in response to the employer’s vaccination policy at the City of Victoria, the City of Langford and the Royal Oak Burial Park. The Union is also preparing a complaint with the Labour Relations Board. Most Unions including CUPE Local 50 strongly support the scientific evidence and vaccinations against COVID-19 for every Canadian that can be vaccinated.
WE CONTINUE TO URGE THOSE MEMBERS WHO CAN GET VACCINATED TO DO SO.
Any individual complaint brought forward will be evaluated reviewing the complaint itself, the member’s input, the collective agreement, the Statutes and case law related to the matter. Once the evaluation is completed a decision will be made by the Union on the likelihood of success and whether or not to proceed with the complaint.
INFORMATION REGARDING VACCINATION POLICIES
This information provided on this page is intended to provide insight and assist members in making their decision with regard to the employer’s vaccination policy. The circumstances around the pandemic are fluid. The law is evolving as more cases are being heard and further decisions being issued. Each member is entitled to their own opinions and should make their own decisions however all members should be aware of possible consequences of their choices. Any policy including COVID-19 policies must comply with the collective agreement and applicable human rights and privacy legislation.
DISPUTING A POLICY THROUGH THE GRIEVANCE PROCEDURE
The Union can and have challenged policies unilaterally imposed by the employer. In each case the employer’s policy has to be reasonable and is required to meet what is called the “KVP criteria”, When grieved, employer policies are measured against the standard established in a the longstanding seminal arbitration case, KVP Co. v. Lumber & Sawmill Workers’ Union, Local 2537  OLAA No. 2, 16 L.A.C. 73 (J. B. Robinson) (“KVP”);
In KVP at paragraph 34, it was held that a unilaterally introduced rule had to satisfy the following requirements;
- It must not be inconsistent with the collective agreement.
- It must not be unreasonable.
- It must be clear and unequivocal.
- It must be brought to the attention of the employee affected before the company can act on it.
- The employee concerned must have been notified that a breach of such policy could result in their termination if the policy is used as a foundation for termination.
- It should have been consistently enforced by the company from the time it was introduced
BC HUMAN RIGHTS CODE (“the code”)
Section 13 of the Human Right Code requires employers to take all reasonable steps to avoid negative impacts on employees who cannot be vaccinated for bona fide medical religious or another prohibited ground of discrimination as defined by the code. .
Mandatory vaccination policies must accommodate members who refuse the vaccine based on protected grounds under human rights legislation. For example, members who cannot be vaccinated because of sincerely held religious beliefs, medical conditions, or disabilities are entitled to reasonable accommodation up to the point of undue hardship.
The BC Human Rights Commissioner has provided guidance with their publication “A human rights approach to proof of vaccination during the COVID-19 pandemic”
The Office of the Information and Privacy Commissioner for British Columbia provides a document on their web page entitled “Privacy and the BC vaccine card: FAQs” that may be helpful to you.
THE RIGHT TO REFUSE UNSAFE WORK
Workers in B.C. have the legal right to refuse unsafe work if there is reasonable cause to believe it would create an undue hazard to their health and safety. If a worker feels unsafe because of something related to COVID-19 or other any communicable disease, they should report their concerns to the employer or a member of the Joint Occupational Health and Safety Committee. If the employer or the Joint Occupational Health and Safety Committee cannot resolve the issue, they must contact WorkSafeBC and a prevention officer will investigate and take steps to find a workable solution.
CANADIAN CHARTER OF RIGHTS AND FREEDOMS:
A paper entitled “Surfing the Fourth Wave: Riding out a Charter Challenge to University and College Vaccination Mandates, 2021” looks at the concerns raised that vaccine mandates may violate charter rights
Of interest may be another CTV Article: “Do vaccine mandates violate Canadians’ charter rights?”
RECENT CASES RELATED TO IMMUNIZATION OR FACEMASK POLICIES :
- British Columbia Rapid Transit Company Ltd. V Canadian Union of Public Employees, Local 7000, 2021 BCLRB 185 (CANLII)
- Insurance Corporation of British Columbia v Canadian Office and Professional Employees’ Union, Local 378, 2021 BCLRB 181 (CanLII),
- The Worker v. The District Managers, 2021 BCHRT 41 (CanLII)
- Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40 and Coast Hotels Limited 2004 BCLRB No. B138/2004,
THE NUREMBERG CODE
In a CTVNews article Professor Pearl Eliadis at McGill University and others explain that “No COVID-19 vaccines do not violate the Nuremberg Code “. We urge you to read the article.
The CTV article follows the views that are coming out of the courts in USA as well for example in Jennifer Bridges, et al v. Houston Methodist Hospital, et al, Case 4:21-cv-01774, (U.S. District Court for the District of Texas, June 12, 2021)