We are all aware by now that many employers are implementing vaccination policies. Our industry is no different, and several of our employers have already put policies into place. This is all very new, and everyone has lots of questions about vaccine policies
The IA Canadian Office has obtained a legal opinion in the form of an FAQ that provides clear, thorough answers to many questions about vaccine policies. The text of that document is provided on this page.
Several employers have shared their vaccine policies with us. Those policies are available to view or download here. If your employer’s policy is not here, it could be because they haven’t shared it with us; they don’t have one yet; or we received it recently haven’t had time to add it here. If you are aware of an employer’s policy that we don’t have, please email President Hartt at email@example.com and inform her about the policy. It might be one we don’t know about yet.
Workplace COVID-19 Vaccination Policies
Can an employer implement a mandatory COVID-19 vaccination policy?
Employers are entitled to implement rules in the workplace, so long as they meet certain criteria. Employer rules must be reasonable and they must not violate the explicit provisions of a Collective Agreement or any human rights laws.
Based on the health and safety risks posed by COVID-19 transmission and infection in the workplace, any challenges to a workplace mandatory vaccine policy that contemplates the prospect of accommodations for legitimate medical and/or human rights are unlikely to be successful.
Based on the case law to date, it is expected that human rights tribunals and labour arbitrators across Canada will require the documented existence of a medical and/or human rights-based reason why compliance with a mandatory vaccination policy is impossible. Challenges based on an individual employee’s personal choice not to get vaccinated and/or because an employee questions the safety or efficacy of the vaccine is almost certain not to be successful.
Can an employer implement mandatory COVID-19 testing?
Testing for COVID-19 is very likely to be considered a reasonable health and safety measure for the foreseeable future, especially in workplaces where employees have any significant contact with the public and/or others in the workplace and/or work within close proximity to others. There are already arbitration decisions which confirm the reasonableness and lawfulness of employer mandatory testing policies.
What should IATSE Locals be looking for in a mandatory vaccination policy and/or mandatory testing policy?
Locals should ask an employer for a copy of its vaccination and/or testing policies in writing and then review those policies with a view to ensuring policies address the following questions, and, if they don’t, Locals should be asking employers these questions:
Does the policy contemplate the prospect of exemptions for those employees that have a legitimate medical and/or human rights-based reason for not being fully vaccinated?
Does the policy set out a clear process for how vaccination status, medical exemption and/or human rights exemption information/documentation should be provided to the employer?
Does the policy explain how access to an employee’s vaccination status or medical exemption or human rights exemption information/documents will be safeguarded and/or protected from unauthorized access?
Does the policy explain what will happen to the employment of individuals who refuse to get vaccinated and do not otherwise qualify for a medical and/or human rights exemption?
Should an IATSE Local canvass its membership on behalf of an employer to identify who is and who is not fully vaccinated?
No. To the extent an employer implements a mandatory vaccination policy or mandatory testing policy, employers should be the ones asking employees about their vaccination status or willingness and/or ability to comply. Employers should also have mechanisms and procedures in place to receive proof of vaccination status from employees and that also safeguard that information/documentation from unauthorized access.
When Local hiring halls fill work calls for an employer, should call stewards be verifying a member’s vaccination status or asking a member if they require a medical or human rights- based exemption before allowing the member to take the call?
No. This is information and/or documentation that should only flow from a worker to the employer directly. The Local does not want to assume the obligation or liability for collecting this information.
When filling work calls, Local hiring halls should clearly communicate to members what the conditions of employment are for any work call (i.e. mandatory vaccination or mandatory testing) and also communicate the mechanisms and procedures an employer has put in place to collect and receive this information/documentation and then leave it to the member to provide the information/documentation to the employer directly.
Can employees be disciplined for refusing the vaccine or testing?
If an employer has implemented a reasonable rule, an employee may be disciplined if they refuse to follow it. Since mandatory vaccination policies and/or mandatory testing policies have a very strong likelihood of being found reasonable if challenged, any discipline issued for failing or refusing to comply with those policies is also likely to stand.
In addition to potential disciplinary consequences, employer policies may contemplate non disciplinary consequences, like for example leave without pay.
Can Locals grieve on behalf of a member that faces disciplinary and/or non-disciplinary consequences arising from their refusal to get vaccinated or refusal to be tested?
Locals may grieve the disciplinary or non-disciplinary consequences faced by members just as they would under normal circumstances. However, filing a grievance does not guarantee success.
To the extent a member does face disciplinary or non-disciplinary consequences arising from their refusal to get vaccinated and/or refusal to be tested and that member asks the Local to grieve, Locals should file the grievance and pursue that grievance through the grievance procedure in the normal course and make every effort to find a possible resolution.
What will qualify as a legitimate medical exemption or human rights-based exemption to an employer’s mandatory vaccination or mandatory testing policy?
Employers are likely to assess exemption requests on a case-by-case basis. In order to qualify for an exemption, employees will have to provide their employer documented proof of their entitlement to an exemption.
For a medical exemption, proof is likely to include written confirmation from an employee’s regular treating physician that confirms they have a medical condition that precludes them from being vaccinated, like for example an allergy to one of the ingredients in the vaccines, or a pre-existing medical condition that outweighs the benefits associated with being vaccinated.
For a human rights exemption, proof is likely to include written confirmation that an employee’s religion, creed or some other protected human rights ground contemplated in applicable provincial human rights legislation precludes them from getting vaccinated.
Doesn’t the Canada Labour Code (Bill S-201) make employer mandatory vaccination and/or mandatory testing policies unlawful?
The Canada Labour Code (“Code”) applies to employees working in federally regulated industries. With limited exception, most IATSE members work in provincially regulated industries, so the Code does not apply.
A COVID-19 vaccine and/or a COVID-19 test is not a ‘genetic test’ within the meaning of the Code. So, even if the Code did apply to a workplace, any reliance of the Code to challenge a mandatory vaccination or mandatory testing policy is almost certain to be unsuccessful.
What about the Charter of Rights and Freedoms – don’t members have a Charter right to refuse to comply with employer mandatory vaccination or testing policies?
The Charter applies to government action and legislation only.
There is a prospect that the Charter may apply to some employers, like municipal and/or government run theatre venues and/or television broadcast stations. However, applying the Charter to workplace rules is a complex endeavour. Even if the Charter were to apply to a particular employer’s actions, the application of the Charter does not necessarily mean employees will have a right to refuse to comply with a mandatory vaccination or testing policy.