Seiu-West Guidance On Non-Sha Employer Policies Re Proof Of Covid-19 Vaccination

SEIU-WEST GUIDANCE ON NON-SHA EMPLOYER POLICIES RE PROOF OF COVID-19 VACCINATION

November 12, 2021

On October 1, 2021, the Saskatchewan Government authorized all employers to require that their employees prove that either:

• They are fully-vaccinated against COVID; or
• Have had a recent negative COVID test.

SEIU-West’s responsibility as a union is to represent our membership’s rights, in a manner free from arbitrariness, bias or unreasonableness.

Since the beginning of the COVID-19 pandemic SEIU-West has worked to address our members’ pandemic-related questions, needs, and concerns. We’ve made employers, the government and the public take notice of the vital service you’ve provided throughout the pandemic. We’ve fought to ensure you have access to appropriate personal protective equipment and mental health supports.

While the healthcare sector (Saskatchewan Health Authority (SHA) and affiliates) has been a focus (see for example our guidance on SHA COVID vaccination policies here) we want to make clear that we also continue to represent the interests of our members in education, retirement homes, community based organizations (CBOs), light industrial and allied sectors.

The following is meant as general guidance about employer vaccination policies for SEIU-West members working for non-SHA employers. It is based on questions we have received from members, our review of employer policies, and relevant legal authorities. We will update this document if and when we receive further information. Because the details and application of an employer’s COVID vaccination policy vary from one employer to another, please contact the Member Resource Centre (MRC) at 1-888-999-7348 Ext 2298 or [email protected] if you have specific questions.

1. Aren’t these policies a violation of the Charter of Rights?

The Canadian Charter of Rights and Freedoms sets out four fundamental freedoms:

• freedom of conscience and religion;
• freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• freedom of peaceful assembly; and
• freedom of association.

However, these freedoms are not absolute; the Charter also states that the rights and freedoms set out in it are subject to such reasonable legal limits as can be demonstrably justified in a free and democratic society.

You may have rights to make choices about how you live, but the Charter may not protect you from every consequence of those choices. The Charter permits governments to impose limits on freedoms where those limits are reasonably justifiable

2. What about my human rights under the Human Rights Code? Doesn’t the employer have to accommodate me?

The Saskatchewan Human Rights Commission (SHRC) has published an information sheet on vaccination mandates and human rights. It states that employees can generally be required to provide proof of vaccination so long as individuals who are unable to be vaccinated due to a characteristic listed in the Saskatchewan Human Rights Code (e.g. religion, sexual orientation, or disability) are reasonably accommodated. The duty to reasonably accommodate these characteristics is a shared responsibility of employers, unions, and workers.

However, the SHRC document also states that individuals who choose not to be vaccinated based on personal preferences do not have the right to accommodation under the Saskatchewan Human Rights Code.

Should you need either a medical or religious accommodation, please contact the SEIU-West Member Resource Center (MRC) as soon as possible.

3. Isn’t it discrimination to require unvaccinated staff to test, when vaccinated staff can also get infected with COVID?

It’s not considered discrimination because the policy allows for staff to show proof of vaccination OR undergo regular testing. The other alternative is if you have a need for an accommodation for any protected grounds under the Saskatchewan Human Rights Code.

Medical experts have identified that while vaccinated people can get infected with COVID, the severity of illness is reduced, as is the risk of hospitalization and death.

4. Can my employer require me to show proof of vaccination? What about my privacy rights?

Yes, the employer may be entitled to collect some personal information about you related to proof of COVID 19 vaccination and/or proof of participation in the employer’s testing program. In doing so, however, the employer must comply with The Health Information Protection Act (HIPA) and/or The Local Authority Freedom of Information and Protection of Privacy Act (LA-FOIP) legislation relating to the privacy and confidentiality of personal information and personal health information. The principles for collecting personal private information set out in the legislation are that the Employer is to establish the purpose and authority for the collection, collect the least amount of information to meet the purpose, share it only with those who need to know, keep it secure, and destroy it when no longer needed.

5. What happens if I refuse to provide proof of vaccination or testing?

You could be subject to discipline for not complying with the employer’s policy. That discipline could include an unpaid leave of absence or even termination. If you have been harmed by the employer’s policy, contact the MRC immediately so that we can address this within your collective agreement.

6. How long to we have to do this for? How long will the policy be in place?

At this point, we do not know.

7. Will we be required to get booster shots?

We don’t know at this point.

8. What happens if I need a medical or religious exemption? 

Please contact the Member Resource Center immediately so we can ensure that you are represented throughout the process.

Note that your request for a medical exemption will likely need supporting medical documentation from your healthcare provider.

9. Will you represent your vaccinated members in the same way you are representing the unvaccinated members?

Absolutely! These policies are being framed in an occupational health and safety context and we will do our best to keep all of our members safe.

10. Can my employer introduce their own public health orders?

No – only a Medical Health Officer can do that. Or the province of Saskatchewan. Individual employers do not have that authority.

11. Is it possible to grieve these policies?

All employer policies, including those regarding COVID vaccination:

• Must be clear;
• Must be consistent with the collective agreement;
• Must have been brought to the attention of the employees in the workplace; and
• Must be applied fairly in the workplace.

Policies that violate these principles can potentially be the subject of a grievance. SEIU-West continues to review the content of employers’ COVID policies, and how those policies are being applied. We follow up with employers with any questions we have. As always, if you have any concerns about your employer’s policies please don’t hesitate to reach out to the MRC at [email protected] or 1-888-999-7348 Ext 2298. 

The SEIU-West Executive Board and staff know that this is a time of uncertainty and continued stress. You have worked hard over the last 20+ months and we are proud to represent you.

Respectfully,

The SEIU-West Executive Board.