Many employers, including non-healthcare employers, are instituting vaccination requirement policies. On Sept. 2, 2021 AUPE’s Executive made it clear that our union would only recognize and acknowledge employer vaccine policies if they met certain standards, including:
- Respecting the terms and conditions of applicable collective agreements.
- Complying with Human Rights legislation. When an individual is not able to be vaccinated on the basis of a medical condition, or other protected ground under the Alberta Human Rights Act, employers must accommodate the individual to the point of undue hardship.The Alberta Human Rights Commission has published guidelines applicable to vaccination requirements. It is important to note they do not view personal choice as a protected ground.
- Complying with the Occupational Health and Safety Act and its regulations.
- Not imposing discipline on members for non-compliance but provides non-disciplinary alternatives to vaccination (work from home or reassignment where possible, and leave of absence without pay as a last resort).
AUPE has taken the position that all Employers, including the Government of Alberta, post-secondary education, all ABC’s and others need to demonstrate that all other options as stated above have been evaluated and implemented before administrative leave . To that end AUPE has already filed numerous policy grievances with various employers.
All employers must follow these same restrictions. That said, AUPE believes some Employers are in the position to consider other, less intrusive measures, before jumping to a required-vaccine policy, which they should only use as a last resort. Your employers are obligated to protect the health and wellness of the public and their staff, but there are many ways to make a worksite safe.
Regardless of who your employer is, AUPE is here to support you through the processes of vaccination requirement policies.
We know that you have many questions, and you have a lot of feelings tied up in this issue – for a good reason, too! Nothing in the FAQs below is meant to diminish the reality of your feelings, which are valid and understandable. But we feel it’s important to present the facts of the situation based on labour law, collective agreements, human rights legislation, and occupational health and safety legislation, so that you can make the best choice for you, your fellow workers, your family, and your community.
Regardless of your position and feelings about your employer’s vaccine policies please know that AUPE is there to protect your rights.
Please contact the AUPE Member Resource Centre at 1-800-232-7284 to speak with your Membership Services Officer (MSO), who is a trained labour relations professional who can assist you with any questions or concerns you have about your employer’s vaccine policies.
KNOW YOUR RIGHTS
Does my Employer have the right to implement a vaccine policy?
The law around an employer’s right to implement work policies is long established. They can do so. But they have to exercise that right in accordance with well known guidance provided by jurisprudence (that is, it has to be for bona-fide reasons).
No one can be forced to get a vaccine against their will. However according to the case law available you will have to live with the consequences of refusing to be vaccinated.
What human rights will my union defend if the vaccine policy infringes on them?
AUPE will only recognize and acknowledge a required-vaccine policy that complies with Human Rights Legislation. When a member is not able to be vaccinated because of a medical condition or another protected ground under the Alberta Human Rights Act, such as a disability or religious affiliation, employers must accommodate the individual to the point of undue hardship. We commit to exploring all avenues to ensure they do.
Don’t I have freedom of choice? What right does my employer have to force me to get a vaccine?
You’re right, you do have Freedom of Choice. You’re free to choose whether you get the COVID-19 vaccine or not, but know that if you do remain unprotected, your employer may make decisions that could affect your employment status. Consequences might include an unpaid leave of absence (scroll down for technical questions about Unpaid LOAs). The employer isn’t forcing you to do anything; they’re giving you an option, even if those options aren’t very pleasant.
What about daily rapid testing instead of vaccine?
The Union believes that in many cases employers can implement this type of protocol for those unable to be vaccinated based on bona-fide reason in accord to protected grounds under Human Rights. That said, the Alberta Human Rights Commission (AHRC) has already established that “personal choice “is not a protected ground.
Any refusal by an Employer to implement rapid testing will be evaluated in terms of a potential grievance, where it is established, they are simply saying “no” for convenience.
My boss isn’t a doctor! They can’t make me get the vaccine…this is bullying and harassment as far as I’m concerned.
You might feel unseen, unheard and upset because of your employer’s vaccine rules, which is understandable, but bullying and harassment are well defined in collective agreements and in the law. Your employer’s vaccine requirement does not fit the legal definition of bullying and harassment.
The employer has a right to make workplace rules that are seen to serve a genuine purpose and don’t conflict with your collective agreement or legislation. In this case, the “genuine purpose” of the required vaccines is to protect the collective health, safety and wellbeing of staff, and the public with whom you come in contact.
It seems weird that my employer has the power to ask me about my vaccine status. How is that any of their business? Who does this information get shared with? I’m concerned about my privacy!
Your employer must comply with the Freedom of Information and Privacy Protection (FOIPP) Act and is only allowed to use the information you provide to implement their vaccine requirement policy and nothing else. AUPE will ensure that employers are held to the high standards of privacy in the FOIPP legislation.
You might not think it’s any of your employer’s business to ask about your vaccine status. You don’t have to disclose anything. But if you do withhold your status from the employer, they might put you on an unpaid leave of absence.
How do the Charter of Rights and Freedoms and my protected Human Rights factor into workplace policies on required vaccinations? I care about my rights, but I don’t think my employer does, and I’m not going to blindly trust them.
That’s good – you should care about your rights, and you should know what they are! Here in Alberta, the same labour laws that protect workers also dictate that employers have the right to make rules, such as required vaccination policies. But they must take their cue from past court hearings and arbitration rulings.
When we dig into the historical record and pull up cases involving employer policies comparable to the required COVID vaccination requirements, we see that judges and arbitrators forced employers to balance employee privacy with workplace safety and public safety. The outcomes of these cases suggest that the courts and arbitrators would favor a policy requiring immunization as a condition of coming to work.
However, human rights laws dictate that members who are prevented from getting the vaccine due to a disability or religious belief must be accommodated to the point of undue hardship. Your Union is committed to assessing accommodation requests on a case-by-case basis.
How can the Employer unilaterally change the conditions of my employment? Isn’t that what they’re doing by ramming these policies through?
The employer is not changing the conditions of your employment, and thankfully you have a collective agreement that bars them from doing so. All employees (and employers) have an obligation to maintain a safe workplace. COVID-19 vaccination policies are just another requirement for meeting that existing health and safety obligation.
If you are a healthcare worker, you were already required (pre-pandemic) to get vaccinated against many other diseases. And if you are not a health care worker, you and your employer were already obligated to take reasonable steps to keep your workplace safe – even before COVID-19 came along.
Working people have fought for decades to make their workplaces safer. The same rules that protected us at work before COVID are the foundation of these new employer-required vaccination policies.
ACCOMMODATIONS, GRIEVANCES, & DISCIPLINE
*Grievances are a lengthy process and can take time to settle. It’s important to remember this when filing one. You might not see immediate results, but they’re an important tool for protecting yourselves and your rights.
What religion must I be to get an exemption from an employer required COVID vaccine?
No specific religion is entitled to an exemption. To qualify for a religious exemption, your religion must prevent you from receiving the vaccine. We do not know what proof the employer will require, but we expect they will treat this as a very narrow exemption.
What happens come Nov. 1, if the Employer hasn't decided whether to accept my request for an exemption/accommodation or not?
Compliance dates are varying from employer to employer. Please be aware of your Employers requirements.
Contact your MSO before the required date and tell them that you made an exemption/ accommodation request, so they can assist you in getting a response.
What do I do if my doctor will not give me an exemption?
It is likely that the employer will require medical proof of your physical condition that prevents you from receiving the vaccine. As with all other medically based requests for accommodation, if you cannot provide medical evidence supporting the need for accommodation, the employer is not obligated to provide the accommodation.
Recently, the Alberta Medical Association (AMA) has been clear with informing the public that Doctors will not be issuing medical notes based on a request. The patient will genuinely need to have a medical condition that prohibits them from receiving the vaccinations.
Is my employer obligated to accommodate me if I make a request for exemption from the vaccine?
Even if a legitimate medical or religious exemption is raised by an employee, the employer may still conclude that no accommodation is possible, short of undue hardship. “Undue hardship” covers a wide range of situations to which the employer can appeal, from compromised patient safety to workplace safety concerns and unreasonable expenses.
What will the Union do if I get disciplined for refusing to get the vaccine or refusing to show my vaccination status to the employer?
AUPE will assess any discipline that you feel is unjust. If there are grounds for a grievance, AUPE will, to the best of its ability, grieve any discipline that is unfair and unjust in terms of a violation of the collective agreement or applicable legislation.
How am I compensated if my grievance about employer-required vaccinations goes to Arbitration?
That would depend on whether the arbitration is successful, and on the arbitrator’s specific ruling.
Will I lose my job if I don't comply with the employer’s required vaccine policy?
It is our belief that at some point employers may shift from unpaid leaves to termination, and some employers have already indicated that they will lay off staff who don’t get vaccinated.
The Union would grieve such a termination if the employer did not evaluate other options, such as redeployment or unpaid leave, or if other legally relevant circumstances justified a grievance.
For instance, if you have a “bona fide” reason for refusing the vaccine – on the grounds that it violates one of your protected human rights – then AUPE will assess the situation and provide labour relations support, on a case-by-case basis.
UNPAID LOAs
What happens to my position if I am placed on an unpaid LOA?
Your position may be temporally backfilled. Refer to your collective bargaining agreement as some CBAs only require the employer to return you to a “similar” position, not the exact same position.
If placed on an unpaid LOA how long will that be?
According to some employers, such as the Government of Alberta, you would be on unpaid LOA until you comply with the policy, or until such time the policy is no longer required. You need to be aware of your employer’s policy to establish if past a certain time your employer contemplates further action.
Can I collect EI or CERB if I am placed on an unpaid LOA for refusing the vaccine?
CERB no longer exists, and it is unlikely you’d get EI. To be eligible for EI you must have lost work through no fault of your own. If you choose to not get a vaccination, then Service Canada is likely to view the loss of work as stemming from your own choice. However, you should contact Service Canada and ask about your specific situation. This is the number you can call to ask questions about EI: 1-800-206-7218.
HEALTH & SAFETY
Why can I opt out of the flu vaccination but not COVID?
Many employers – specifically, healthcare employers – already have flu vaccine policies for staff. These policies have been reinforced by arbitration awards and court decisions, which validate the employer policy.
Like COVID vaccine initiatives, these policies stipulate that if an employee refuses the flu vaccine, they will face consequences, such as a short-term absence from work or redeployment to “non flu” areas. The consequences for refusing the COVID vaccine are just more serious because the virus is more aggressive.
If I get the vaccine, and I suffer side effects that force me to take time off work, am I protected?
It’s completely understandable to worry about the potential effects of vaccinations – or any medical procedure, for that matter. If a worker has an adverse reaction to the COVID vaccination that renders them unable to work for a short-term, they should refer to their illness leave provisions in their collective agreement. Call your AUPE Membership Services Officer at 1-800-232-7284 if you have any questions about your collective agreement.
You may also be eligible for short-term disability benefits if you must take a longer leave because of a reaction to the vaccine. Again, AUPE has staff who can help you access and understand these benefits.
Recently it appears that WCB is evaluating eligibility for benefits if a worker becomes ill after receiving an employer mandated vaccine. We are engaged with WCB in understanding the thresholds for eligibility.
Can’t the employer just require rapid testing instead of vaccination?
Some employers have considered or even incorporated rapid testing into their COVID response. Unfortunately, though, there is no legal requirement for an employer to choose the employee’s preferred method of making the workplace safer. So, if requiring employees to be vaccinated before coming to work is reasonable, then it won’t matter that rapid testing is also reasonable – the employer will pick their preference.
That said, the union will be pursuing grievances where the collective agreement states that the employer is required to pay for medical certificates that they require. We believe that the testing that they are intending to make employees pay for out-of-pocket is covered under that contract language.
How do I know that the vaccine is safe?
The Pfizer, Moderna and Astra-Zeneca vaccines have all now received full approval, in accordance with all standards. If you have any concerns about the efficacy or safety of the vaccine, you should talk to your doctor.
What about patients and long-term care residents who refuse to wear masks? What’s the union doing to address this problem?
A continuing-care facility is not a resident’s workplace. It’s their home, so the rules of employment don’t apply to them. Some LTC clients also have medical, physical, and mental reasons why they can’t or won’t wear a mask, and we must be sensitive to their individual needs.
However, a continuing-care home is still your workplace and as such, affects your health and wellbeing. So, if you have legitimate concerns about residents not wearing masks, you should raise them with your OHS representative or MSO who can talk to the employer. You should also speak with management and ask them to complete an OHS hazard assessment.