Vaccine mandates put unions in a delicate spot
The Star talks to Colleen Bauman about vaccine mandates
In an article discussing the tricky situation unions are in when some members do not want to be vaccinated, the Toronto Star asked Colleen Bauman to outline the approach arbitrators have traditionally taken to vaccine mandates.
While worker safety is a foundational principle for unions, the pandemic is in some ways new territory, said Colleen Bauman, a partner at Toronto-based labour law firm Goldblatt Partners. Vaccination policies didn’t previously feature as prominently in health and safety thinking, but are now “very much part of the discussion,” she said.
So why seek accommodations when a measure makes workplaces safer — and could potentially save workers’ lives?
Sometimes those demands arise because of the specifics of how a policy, even one with positive goals, is implemented in a particular workplace, said Bauman.
In the past, labour arbitrators have sometimes struck down mandatory vaccine policies if they were too coercive and didn’t provide employees “with some form of choice whether or not to be vaccinated,” notes Bauman,” although that choice “may entail some consequences” for workers.
In other cases, employers’ vaccine requirements have withstood legal challenges because they allowed for accommodations like unpaid leaves for workers who did not get flu shots.
What is considered reasonable depends on the facts on the ground. This includes medical evidence, the effectiveness of possible alternative safety measures, workplaces’ operational needs, as well as “specific factors in the way in which (a policy) is being implemented” such as consistent enforcement and reasonable accommodations, said Bauman.
While Bauman said she is not aware of any active legal challenges to vaccine requirements in Canada, there has been a smattering of related cases that so far suggest that compulsory COVID precautions are likely reasonable if applied fairly.
The Star also spoke to Alison Braley-Rattai, an assistant professor of labour studies at Brock University. She said that vaccine mandates “should make provisions for those legally entitled to accommodation,” and noted that “accommodation is not an absolute right, but it would be difficult for a given employer to demonstrate that there was no safe accommodation possible.” At the same time, “vaccine skepticism is ‘not legally recognized'” and “a choice to accommodate this group would follow different considerations.” She also comments on a union’s duty to represent its members in relation to vaccine policies.