WorkSafeNB right to enforce vaccination mandate - arbitrator
Another set of grievances from unvaccinated public-sector workers is dismissed
Two unvaccinated WorkSafeNB employees and their union saw grievances over the province’s vaccination policy dismissed last month, with the arbitrator finding it to be reasonable.
Two workers at the provincial government’s occupational health and safety agency - Lisa-Mary Smith and Wendy Balemans - filed personal grievances after they were suspended from their jobs in the fall of 2021 for failing to get vaccinated against COVID-19 or show proof of it.
The province had enacted that policy Nov. 19, 2021, and it applied to associated agencies such as WorkSafeNB.
Smith and Balemans’ union, the Canadian Union of Public Employees (CUPE) Local 1866, also filed a general policy grievance, arguing the vaccination policy violated the collective agreement.
The workers’ grievances focused specifically on the notion that enforcing the policy for some employees wasn’t necessary.
“They specifically allege that, because they were working from home, the COVID vaccination mandate, as applied by [WorkSafeNB], was unreasonable,” arbitrator Michel Doucet wrote in his Jan. 3 decision, published recently online.
“In terms of remedies, they are seeking compensation for loss of salary, seniority and other benefits from the date that they were placed on unpaid leave to their return to work.”
However, the arbitrator, who heard arguments in the case Oct. 17, said Smith’s and Balemans’ status as working from home didn’t eliminate the possibility of interaction with other WorkSafeNB employees.
Remote work wasn’t the solution
“Josée Pelletier, the employer’s executive director of human resources, testified that the employees who were assigned to work remotely were told that they could, at any time, be called in to work and that they needed to be available for such an eventuality,” he wrote.
“She also indicated that employees working from home were allowed to come to the workplace whenever they wanted to and that they still had access to their workstations and ‘pass cards’ to enter the building.”
Doucet also noted WorkSafeNB made it clear remote work would be a temporary measure.
Evidence at the hearing showed Smith informed her superiors she wouldn’t get a COVID-19 vaccine, finding it posed a greater risk than benefit to her, and that she wouldn’t consent to regular testing or to masking.
“I have no idea what is in those POCT and PCR tests or what the long term effects are of sticking that up my nose all the time,” she wrote in an email at the time.
“As far as the vaccine, I have done research and not just on YouTube. I have looked at the Pfizer and Moderna documents on their websites and made my decision. There is no long-term safety data either so you have no idea what will happen in a year or two or five. It is still experimental whether they say it is approved or not. I do still have my rights to choose what goes into my body and it is not up to government.”
Smith claimed masking at work would be a form of punishment or coercion to get her to give in and get vaccinated.
Balemans, upon learning of the vaccination requirement, demanded information on vaccine risks and recovery from any adverse effects. She wrote in an email that once she had that information, she’d agree to being vaccinated, provided the guarantee was “signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorized personnel regarding these procedures.”
WorkSafeNB management directed her attention to the province’s online COVID-19 information, and she didn’t get vaccinated, leading to her suspension.
Both workers were back on the job and the payroll in March 2022 after the province lifted the requirement.
Doucet noted that while the union filed a policy grievance related to the vaccination requirement, CUPE Local 1866 president Ryan Wentworth testified the union supported the policy for employees who would be on the premises of the workplace.
“Mr. Wentworth testified that the union does not disagree with the ‘mandatory vaccination requirement’ for employees who have to come to the workplace,” the arbitrator wrote in his decision.
“However, he added that the union felt that the requirement that employees who are working from home be vaccinated was unreasonable.”
Doucet noted he and other labour arbitrators who have ruled on similar grievances by public-sector employees who’d been suspended without pay due to the policy found it was valid and a “proportional measure adopted by the government of New Brunswick to address the global pandemic of COVID-19.”
Issue of workplace safety
He rejected the notion that the policy violated CUPE Local 1866’s collective agreement, because it contained a clause that specifically allowed management to take steps to ensure safety and security in the workplace.
The contract notes the employer has the right and authority to enforce safety in the workplace.
“There is no question that the policy was implemented to enforce safety for the employees and the clients of [WorkSafeNB],” Doucet wrote.
“I would even go as far as saying that [WorkSafeNB] had an obligation… to adopt such a policy.”
The arbitrator also found the policy was reasonable, as had adjudicators in other cases addressing the same issues.
“At the time when this policy was implemented, the province of New Brunswick was under a state of emergency,” Doucet wrote.
“In the lead up to this policy, the government of New Brunswick had decided, on Sept. 24, 2021, to reinstate the state of emergency that had been lifted during the summer of 2021. The reason for this decision was because of the rise in numbers of hospitalizations due to COVID-19.”
He noted courts have taken judicial notice that vaccines are effective in reducing the seriousness of COVID-19 symptoms and limiting the number of grave outcomes.
“As the evidence indicates, the grievers were reluctant to be vaccinated. I accept that Ms. Smith and Ms. Balemans were faced with a difficult choice. They apparently hold strong beliefs about the safety of the vaccine, and it is not my role to question those beliefs,” the arbitrator wrote.
“However, in the extraordinary circumstances of the pandemic, as it was known in the fall of 2021, implementing the policy was a reasonable decision. The policy was a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic based on the information that was available at that time.”
Doucet further pointed out the policy allowed for medical exemptions, but the grievers offered no evidence they had conditions that made vaccination a greater risk for them.
He wrote that the policy was clear and that there was no evidence it wasn’t applied consistently, and he dismissed the grievances.
Doucet recently issued a decision on similar grievances from NB Powers employees working at the Point Lepreau Nuclear Generating Station who were suspended for not getting vaccinated or showing proof of vaccination.
Don MacPherson can be contacted at ftonindependent@gmail.com.