Sidelined unvaccinated workers have legal options

Constitutional challenges, union grievances among channels for redress, lawyer says

marino sveinson
Pulver Crawford Munroe LLP partner Marino Sveinson said employees put on unpaid leave for not getting vaccinated have options to seek remedies | Rob Kruyt

Federal and provincial governments have joined private-sector employers in requiring employees to get vaccinated against COVID-19 or go on unpaid leaves of absence.

Employees who choose not to get vaccinated are left pondering options. Do they relent and get vaccine shots? Or do they try to fight their employer’s policy?

Lawyers say various kinds of challenges are possible, depending on who the employer is, and whether the employee is unionized. 

The first government mandate for B.C. workers to get vaccinated started on August 12, when provincial health officer Bonnie Henry ordered that all workers in the province’s long-term care and assisted-living facilities be fully vaccinated by October 12.

She later expanded the mandate to include all health-care facilities and to say that workers hired between October 12 and October 26 needed to either be fully vaccinated or have had one dose of vaccine and commit to a second dose within 35 days. 

The provincial government added October 5 that all public-service employees would need to provide proof of full COVID-19 vaccination by November 22. 

That group includes government ministry staff, Crown prosecutors, corrections officers, staff and child-protection workers.

The federal government on October 6 added to the vaccine mandates for workers by announcing that federal public servants will have to attest to being fully vaccinated against COVID-19 by October 29 or face being put on leave without pay by November 15.

Exemptions to the policy would be “exceedingly narrow,” Prime Minister Justin Trudeau said.

The moves by government opened the floodgates for other organizations to issue similar mandates. TransLink, for example, on October 8 said employees must be fully vaccinated and provide proof of their status by November 29.

Pulver Crawford Munroe LLP partner Marino Sveinson told BIV that he believes most employee challenges to vaccine mandates will fail because employers have the responsibility to provide healthy and safe workplaces. 

He added that his company represents employers that are trying to implement, and enforce, mandatory vaccination policies to protect the health and safety of workers.

However, he said there are a number of legal options for unvaccinated employees put on unpaid leave to take.

Government employees forced to take unpaid leave could mount constitutional challenges, he said.

This approach would mean going to court to argue that their rights under the Charter of Rights and Freedoms had been breached.

Employees could argue that the Charter’s Section 7 says that “everyone has the right to life, liberty and security of the person,” and the government is breaching that clause, Sveinson said.

“When the government acts directly, it is subject to the Charter,” he added. 

The government would then likely argue that any potential infringement of the charter is justified because workers are interacting daily with each other and in many cases with the public. 

Charter rights are subject to the Constitution’s Section 1, which states that those rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” Sveinson said. 

He mentioned one appeal process that is available for non-union private-sector workers. 

They could go to court claiming that being put on unpaid leave amounts to a “constructive dismissal,” which means that they were wrongfully dismissed and therefore eligible for compensation. 

Workers may win those cases if they can prove that their employers imposed new conditions of employment on them long after the workers first became employees, and that their employers enforced those conditions in ways that effectively removed the employees’ abilities to earn salaries, he said.

Unionized private-sector workers would first go to their unions and ask them to file grievances against the employers, Sveinson said.

That could prompt the employers to reverse their vaccine mandates. 

If union executives decide not to file grievances against employers, the employees have other options.

Workers could file complaints with the Human Rights Tribunal, saying that their rights were violated under the B.C. Human Rights Code, he said.

“Most of the employers are putting in place some accommodation measures for true human rights issues, but there will be adjudication that occurs around whether someone had a true religious objection, or a medical reason for refusing to get vaccinated,” Sveinson said.

Another option for private-sector unionized workers would be to go to the Labour Relations Board and claim that under Section 12 of the Labour Relations Code that the worker’s union did not represent them fairly, Sveinson said. 

“An individual employee, whether unionized or non-unionized, could also go to B.C.’s Office of the Information and Privacy Commissioner and claim that [the vaccine mandate] was an unreasonable invasion of their privacy.” •