Covid Policy Update – 20 October 2021

On 7 October 2021 we notified the membership via our L21 website that we would be answering two (2) questions tabled as possible grievances at our next Executive Board meeting.

Those items were:

  1.  Are these policies permissible under law?
  2.  Is the City of Regina obligated by our Collective Agreement to continue paying for testing beyond 15 November 2021?

In answering these two (2) questions we consulted legal assessments by both our Cupe National body and other Labour Organizations which covered the following topics:

  1. Nuremberg Code
  2. UNESCO Universal Declaration
  3. Can an employer have testing as a requirement.
  4. Has the employer met their obligations under the KVP test  
  5. Impact of Provincial Regulations
  6. Charter Implications
  7. Conscientious objection
  8. Genetic non-Discrimination Act
  9. Privacy Rights
  10. Duty to Accommodate (DTA)
  11. Saskatchewan Human Rights Code (SHRC)
  12. Right to Refuse
  13. Prospective Discipline for non-Compliance
  14. Duty of Fair Representation
  15. Reasonableness Test
  16. Paid Testing

The majority of the Executive Board found that the above was duly considered in the assessments and that the answer was “yes” to both questions.

What this means going forward:

Vaccinated or Test Policy:

As the majority of the Executive Board has found this policy to be generally permissible we will not be grieving the policy at this time. In addition we have added the caveat that we must be cautious of a few points going forward:

  1. Should the policy change we will need to review those changes.
  2. Should discipline flow from this policy we would need to follow our standard process.

Paid Testing:

The Executive Board has found that our Collective Agreement sufficiently covers this item (and among other items) and we will be grieving this unpaid testing.

It’s important to keep in mind that while this works through the process, which is generally not a fast one; members will still be expected to comply with the policy.

I’d like to share some general submissions from the assessment which are pertinent to the above:

 Do the Nuremberg Code and UNESCO Declaration apply to COVID-19 Vaccination? 

Ultimately, neither the Nuremberg Code nor the UNESCO Declaration are applicable to COVID-19 vaccination. First, both documents explicitly concern experimentation, and not simply any medical treatment. This means that their principles no longer apply once any given vaccine has been through a clinical trial and approved for use.

The four (4) COVID-19 vaccines that are currently approved for use in Canada include — Pfizer / BioNTech  /  Moderna and AstraZeneca – all underwent rigorous, carefully monitored large-scale clinical trials before being reviewed by Health Canada. As the vaccines were developed, the clinic trials that were undertaken were all strictly in line with the Nuremberg Code.

All of the participants in clinical trials were given the opportunity to review the risks and consent. The fact that these trials were prioritized and accelerated due to the severity of the pandemic is not evidence that the trials were a sham. More importantly, in the employment context, no worker can ever be forced to take a vaccine.

Legally speaking, there is a crucial difference between forcing vaccination upon a worker and imposing consequences on a worker who chooses not to get vaccinated. In the latter case, the worker retains ultimate control over their body and the right to forego vaccination if they so choose. Just because a worker could suffer negative consequences from remaining unvaccinated, it does not mean that their employer is forcing them to be vaccinated.

For these reasons, the Nuremberg Code, the UNESCO Declaration, and any other regulations prohibiting forced experimentation cannot apply to a COVID-19 vaccination and / or testing policy or regulation.

 My findings in that memorandum will support a conclusion that the City of Regina’s Policy is largely reasonable, for these reasons:

 – A workplace policy can be legally based in either Legislation or the Collective Agreement. If there is no Legislation that tells the employer it must do something, the parties must turn to the Collective Agreement for guidance.

– The respective Collective Agreements between the City of Regina, Local 7, and Local 21 do not explicitly prohibit the City of Regina from instituting a “vaccination or test” policy. Where the Collective Agreement is silent, an employer has a broad “management right” to implement policies in the workplace. Such policies are subject to analysis under a test known as “KVP”.

– In the present case, the City of Regina appears to be choosing to “opt-in” to recent regulations under the Saskatchewan Employment Act (SEA). These regulations – The Employer’s COVID-19 Emergency Regulations – allow any provincial employer to choose to implement a vaccination or weekly testing regime.

– Because the regulations are “opt-in”, it could theoretically be possible to challenge the employer’s decision to adopt the policy. In such a challenge, the Union would argue that the employer exercised its management rights unreasonably when it made the choice to opt into a COVID-19 vaccination or test policy. However, my opinion is that it would be difficult, if not impossible, to argue the decision to opt-in to government regulations. Ultimately, an Arbitrator would be likely to show great deference to an employer that opts-in to a government regime.

– In any case, the City of Regina’s arguments in favour of this policy are strong. The workplace is large, and I understand that members regularly or semi-regularly intermingle with each other or cross paths with members of the public. The fact that Local 21 members spend the majority of their time outdoors is only one (1) factor that could be used against the policy. In recent cases, Arbitrators have not given this “open air” factor very much weight.

– The City of Regina’s policy appears to contain all of the requisite safeguards and balancing features, these include:

  1. References to Human Rights Legislation
  2. Accommodation
  3. Personal Privacy concerns
  4. Occupational Health and Safety (OHS)
  5. Progressive Discipline.

All of these provisions will support the policy’s general reasonableness. However, be aware that any improper application of this policy or these safeguards, including deviation from the policy and/or the government regulations, can and should be grieved.

– Medical, political, and social consensus is growing that COVID-19 and its delta variant can be very harmful to individuals in every demographic. Additionally, the consensus is growing in favour of vaccines, which are deemed to be both effective and safe by Health Canada. This combination of factors weighs heavily in favour of the City of Regina’s current policy and would make it extremely difficult to challenge at Arbitration, regardless of any government regulations

– Arguments that invoked personal privacy and bodily integrity have not been successful thus far. While the strict issue of mandatory vaccination has not been tested at Arbitration, there are a number of mandatory testing cases from 2020. In these cases, Arbitrators found that imposing mandatory testing on employees was a reasonable response to the pandemic.

In Closing: 

I can appreciate that the decisions your Executive Board has made will not satisfy all but this is the direction we are going.  If members have any further questions on the matter I encourage them to either contact our office or attend our next general membership meeting.

With the exception of the paid testing – the City of Regina has introduced a reasonable middle ground policy between having nothing at all and mandatory vaccinations.

This is being done in order to combat the real demonstrable threat that Covid-19 presents to our society, our most vulnerable, and in order to keep our members safe while we continue to provide the services that allow this city to function.

Lastly, I want to end by thanking everyone for their patience as we delivered this message and thank you all for your continued work during these very difficult times.

Laird WilliamsonPresident