The coalition of City of Vancouver Unions (CUPE Local 15, CUPE Local 1004, and the Firefighters Union Local 18) have now filed Section 54 applications at the BC Labour Relations Board (LRB) given that the City has denied that they have any legal obligation to discuss alternatives to this policy with their unions. CUPE 391 at the Vancouver Public Library has also made a Section 54 application. Although the future is obviously unknown, it may be through the Section 54 process that this coalition can seek to successfully modify the deleterious effects of the Vaccine Mandate Policy.
Indeed, as was communicated to City and Parks employees on Friday, the employer has modified the policy to allow for partially vaccinated employees to work beyond the original December 6th deadline for a limited period of time if fully masked. This significant change, falling upon the heels of the unions’ Section 54 applications at the LRB, may indicate the first example of the City recognizing that their policy falls short on reasonableness. As you may have been noticing in the news, the City of Vancouver’s vaccine mandate and disciplinary consequences are an outlier in the municipal sector. The fact that our surrounding municipalities are following significantly different paths may speak volumes about the reasonableness of that policy. Unfortunately, it is unlikely that the reasonableness will be determined any time before December 6th.
Privacy Rights Issues
The employer is now officially starting the collection of your vaccination status. While sharing this information may seem innocuous to many people, whether you share this personal medical information with your employer will be a fundamental issue to some people who cherish their privacy, regardless of whether they are vaccinated or not. Individuals’ privacy rights are not simply set aside by entering into an employment relationship. Rather, privacy rights, while robust, are looked at contextually with a balance being sought between the employer’s need to run its business and the individual’s right of privacy.
In the context of the City’s Vaccine Mandate Policy, the employer is requiring its employees, regardless of their vaccine status, to share this personal medical information with the employer. This requirement undoubtedly trenches upon an individual’s right of privacy, but the question remains whether the requirement is a reasonable one in all the circumstances. A breach of privacy rights, unlike the holding of an employee out of work, does not have an easy calculable financial remedy equal to the loss. Once this medical information is shared with the employer under duress, it cannot be “unshared” if the demand was found to be a breach of individual privacy rights.
In non-COVID times a demand for vaccine status medical information could never be required for an employer with a business like ours. For example, prior to COVID, in the health sector, labour arbitrators have ordered the substitution of mask mandates in the place of vaccine mandates when workers in the health sector exercised their privacy rights by refusing to share their flu vaccine status with their employers. Arbitration cases like these are persuasive, but not determinative, and the time it will take to determine whether you in fact have an employee obligation to share this private medical information will likely long outstrip the December 6th deadline. In the interim, between now and December 6th, and whether you are vaccinated or not, you can exercise your individual privacy rights over this medical information as follows:
1. Share your vaccine status at your earliest convenience as long as you are doing so of free will. Privacy Rights are individual rights that allow you to share as much or as little information with the employer as you want.
2. If your Privacy Rights are a concern to you in this context, you may consider refraining from sharing your vaccine status with the employer until, or slightly before, December 6th. If the employer threatens you with discipline for failing to share your vaccine status before December 6th, contact the union office immediately to request the assistance of a City steward.
3. On December 6th, if you haven’t already shared your vaccine status and the unions haven’t been able to persuade the employer to modify its policy, you will need to either share your status or continue to refuse. This will be a difficult decision to make. If you share your status and are fully or partially vaccinated, you will be allowed to remain in the workplace beyond the 6th. However, if you don’t share or don’t have your first vaccine, the City will unilaterally place you on a leave of absence without pay (or alternatively, you may be allowed to use banked time). That imposed leave of absence, if you continue not to share your status or if you remain without your first vaccine, will continue until the employer decides whether to terminate your employment or not.
For those members who are placed on leaves, contact your steward or the union office and the union will support your choices and file grievances where appropriate. However, to ensure transparency and no illusions, there is a distinct difference between filing a grievance and demanding a remedy; and winning a grievance and obtaining a just remedy. The grievance process can be lengthy, and the law around vaccine mandates in the unionized sector is being developed in real-time as CUPE Local 15 and other unions challenge their employers about policies that are arguably unreasonable. Our local can make no promises that all (or even some) of the grievances arising out of the Vaccine Mandate Policy will proceed to arbitration. We will follow the law and our judgment of the likelihood of success in our decision making, and so many considerations currently depend on circumstances that are unknown or changing day by day.
Please watch for further CUPE Local 15 online banners and check the website for more developments.