Can the Saskatchewan Health Authority (SHA) implement a mandatory COVID-19 vaccination policy?
Yes. Employers are entitled to implement rules in the workplace so long as they meet certain criteria. Under Saskatchewan’s Occupational Health and Safety Legislation, employers have a duty to protect employees from work-related illness or injury. This can include policies to limit the spread of infectious diseases. Employer rules must be reasonable and they must not violate the explicit provisions of a Collective Agreement.
Employers still have an obligation to comply with the Human Rights Code, and to accommodate members under its provisions, if they cannot receive a vaccine because of a medical condition or other grounds that are protected by the Code, however this would likely require evidence of a need for accommodation beyond an applicant simply disagreeing with the safety or efficacy of the vaccine.
Can I be disciplined or fired if I refuse to get the vaccine?
Possibly, under certain circumstances. Policies requiring that all employees be vaccinated for the seasonal flu without a reasonable option to the vaccination have typically been deemed unreasonable in the context of discipline or dismissal. Currently, the SHA policy only requires proof of vaccination or proof of a negative COVID test. However, should legislation or public health orders be introduced, as has occurred in other jurisdictions, allowing for the mandating COVID vaccination, failure to comply with Employer policy may result in discipline including termination.
In addition to potential disciplinary consequences, there could be other, non-disciplinary consequences, including being placed on leave without pay, the obligation to wear enhanced Personal Protective Equipment (PPE), and the obligation to maintain physical distancing.
Will SEIU-West represent members subjected to discipline over employer COVID-19 policies?
Yes. As always, we will pursue grievances filed by the union on behalf of our members including proceeding to arbitration. However, SEIU-West will not argue unsupportable facts. If a member demands the Union file a grievance relying on unsupportable facts or exclusively on the member's personal opinions, SEIU-West may be unable to pursue the issue and the grievance will be unlikely to succeed.
What about the Charter of Rights and Freedoms?
Applying the Charter to workplace rules is a complex matter. The Charter normally only applies to government action and legislation only. Even if it did apply, Section 1 of the Charter states that all of its rights can be subject to “reasonable limits.”
What if I have a medical condition that excludes me from taking the COVID-19 vaccine?
Human rights codes say employers must reasonably accommodate employees who can’t comply with workplace policies due to medical conditions or disabilities. An employee will need to provide the employer with proof of disability from a medical professional to support their accommodation request.
If I’m unvaccinated, can the SHA implement mandatory testing?
Yes. Mandatory testing is a reasonable alternative to the proof of vaccination requirement.
Will employees be forced to pay, out-of-pocket, for their testing?
This will depend on several factors, including the provisions of the Collective Agreement and the contents of the employer’s own policy.
Can I grieve this policy?
Members do not file grievances, the Union does so on behalf of the members.
What if I’m working from home?
There are currently competing legal opinions on the reasonableness of requiring employees working from home to provide proof of vaccination or submit to regular COVID testing. It will depend in part on the stated purpose for introducing the policy. However, the Employer can require employees to return to work at an Employer facility, in which case the employee would be subject to the policy.
What if I can’t take the vaccine because of my religion?
Upon the provision of proper verifiable information regarding your religious exemption, you should be accommodated by being provided access to regular COVID testing.
What if I am worried about the vaccine due to pregnancy?
If you have proper verifiable medical information indicating you have a medical condition that would preclude being vaccinated, you should be accommodated by being provided access to regular COVID testing. If your worry is your personal opinion, you may opt for mandatory COVID testing if it allowed in the policy, but it would not be an accommodation.
What if the employer cannot provide an accommodation?
If the Employer indicates it cannot provide an accommodation, including alternate work or work location, the Union will act to ensure the Employer’s claim is accurate and all accommodation options have been exhausted. If it is verified that an Employer cannot provide an accommodation, then it is possible you will not be allowed into the workplace as an employee.
What if I have an adverse reaction to the vaccine?
If you have an adverse reaction and you subsequently obtain medical advice from an appropriate medical professional to refrain from taking more vaccine, you may provide the employer with proof of your condition from a medical professional and request an accommodation, which may include regular COVID testing.