This week our hosts dive into one of the biggest trending employment law topics: vaccination mandates. They discuss how vaccination policies have changed over the course of the pandemic, and what happens to employees who were temporarily suspended when their employer lifts the vaccination mandate, including within the federal public service.

Full episode transcript below:

Narrator: This podcast is produced by Nelligan Law.

Dana DuPerron: Welcome to All Worked Up, the podcast where two employment lawyers break down real-life workplace issues that affect real people. I’m Dana DuPerron.

Jill Lewis: I’m Jill Lewis and we’re Senior Associates at Nelligan Law, and we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible, for employees and employers. Welcome to All Worked Up. I’m Jill.

Dana DuPerron: And I’m Dana.

Jill Lewis: What are we all worked up about, Dana?

Dana DuPerron: Today we are talking about the end, or at least the suspension, of the federal vaccination mandates for COVID and COVID mandates, sort of more generally. Now –

Jill Lewis: Oh boy! Are getting right into it?! [laughs]

Dana DuPerron: Gray area. The 50 shades of COVID, of COVID gray. So the feds suspended the mandatory vaccination policy for their workforce, effective June 20th I think it was.

Jill Lewis: Yeah, so I don’t know how long it’s been, –

Dana DuPerron: Since October.

Jill Lewis: Since October 2021?

Dana DuPerron: Yeah.

Jill Lewis: OK, where federal employees have been suspended. Now most of them are with pay, some without, correct?

Dana DuPerron: Without, without.

Jill Lewis: It is all without?

Dana DuPerron: It’s leave without pay.

Jill Lewis: Excuse me, I’m sorry, without pay. If they either did not get vaccinated or are not willing to disclose whether they’re vaccinated.

Dana DuPerron: Yeah, and that is, that’s what’s suspended.

Jill Lewis: Yeah, so that’s suspended. So there’s I guess the possibility that it could be re-implemented in the fall, or if the need requires in future. We’ll see if that happens. For now it’s suspended and those workers are supposed to be back in the workplace, got to go back to work.

Dana DuPerron: Yeah.

Jill Lewis: And then the same thing with any sort of – most of them likely had an accommodation request out there probably floating around. 

Dona DuPerron: I actually don’t think there were that many that were –

Jill Lewis: Oh, I’ve got a fax!

Dana DuPerron: Oh do you? OK, there you go.

Jill Lewis: I’ve got a fax!

Dana DuPerron: I thought it was pretty small numbers.

Jill Lewis: I have like actual stats on this. One second …

Dana DuPerron: OK.

Jill Lewis: Go on.

Dana DuPerron: Well to the extent that you – [cross-talk] no, so to the extent that you had a request out there, it essentially becomes moot. But I mean a lot of people are going to still be upset about the period of time that they were out of work without pay. Now I don’t think we have a lot of guidance to offer here, with part of it being because, you know, throughout COVID, anything kind of COVID-related, a lot of lawyers have chimed in on it various times. And boy, oh boy! Has that advice changed over time, right? Like the –

Jill Lewis: Are you – if you could go back and – you will probably find footage of me two years being like, “Um, we’re never going to be able to tell someone they have to get vaccinated. Get out of here!” And then yeah, and fast forward.

Dana DuPerron: And things have changed, yeah.

Jill Lewis: Like holy cow, did that change! That changed quickly. OK, quick stats, there are, just in case anyone’s interested, as of May 30th there’s a total of about 2,598 requests for accommodation in relation to this policy; 654 for medical; 1,600 for religious; and 285 for other reasons. And the – ooh! How many do you think –

Dana DuPerron: Those are outstanding or those are –

Jill Lewis: Those are –

Dana DuPerron: Or what was just made?

Jill Lewis: Requests, and then how many do you think were deemed eligible, Dana? So out of 654 medical, what do you think, were deemed eligible?

Dana DuPerron: Fifty-seven.

Jill Lewis: Actually it’s 310; that seems high. This actually seems much higher –

Dana DuPerron: Than I would’ve thought –

Jill Lewis: Religious reasons.

Dana DuPerron: Just based on, just anecdotally: 642.

Jill Lewis: There you go. There’s your stats, there’s your fun facts for the next party.

Dana DuPerron: Yeah, OK. So we’ll see what happens with that, right? Like I think the unions probably still have – you know, “When you came here to start off with we said, “If you’ve got a collective agreement we’re not [cross-talk 00:04:15],”” [laughs] because that’s going to govern. And we’re talking about mostly employment issues but there will be a lot of the unionized workers with their cases, their grievances proceeding, and we’re waiting on guidance there. I think what it’s going to come down to is establishing whether or not it was a necessary safety requirement in the workplace, and I think there’s going to be evidentiary battles on that ground. Maybe, if I’m predicting. That’s my prediction.

Jill Lewis: Ah, yeah.

Dana DuPerron: We may still see lawsuits trickle through the courts. We’re talking about it because it’s the federal mandate that’s been suspended, but some workplaces still have vaccination mandates and it’s just that they’re not required to do so, either by the federal government. If they’re federally regulated, which the feds had said they were going to amend the Canada Labour Code to require COVID vaccinations, which hasn’t happened. It’s kind of been all quiet on the Western Front with that so I doubt there’s very much energy going into that. And provincially those mandates, they’re not required.

Jill Lewis: And I can’t see anything suddenly rolling out.

Dana DuPerron: Except for any potentially specific places but hospitals. I know a lot of healthcare settings still have –

Jill Lewis: Nursing homes and things are going to –

Dana DuPerron: Yeah, and still have them. So whether or not you are allowed to is still the issue that I don’t think we have a ton of guidance on!

Jill Lewis: I’d be so interesting. So a couple of years ago when I took a little seminar on this, and all the lawyers, everybody on the panel was like, “No. No, no, no, no. This will never be, this will never pass.” And we had very little guidance; what we had was like a handful of nursing union cases. So I guess this is a situation where you can see that sometimes adjudicators and union law can – like we can apply it. Because –

Dana DuPerron: Yes, yes!

Jill Lewis: Sometimes we have to. We’ve got –

Dana DuPerron: It often is the guidance, yeah.

Jill Lewis: We’ve got nothing else. And in those situations, in I think almost all but one, it was policies that – yeah, it was flu vaccines where the nurses had to get flu vaccines or yeah, they lost their jobs. And the unions were successful on all but one, and there are certain factors and it’s going to come down to science. So it’s really interesting because we’re dealing – like we’ve got so much science now where there was actual case law where it said, “There’s no real science on the effectiveness on PPE,” and you know? So it’s interesting because now we do. We’ve got a ton of science on that, on whether it would’ve been effective or not. So that’ll be interesting.

And another big piece there was what was the government’s guidance policies, what were they telling –

Dana DuPerron: What information did they have?

Jill Lewis: Yeah.

Dana DuPerron: Like what were they working on? Yeah.

Jill Lewis: Yeah, and what were they telling the citizens? Were they telling people to stay home? Because I think that was the one case that failed was that, it was a municipality and it was – they were really sending the message out there that you had to stay home. And there was a really bad flu outbreak; I can’t remember. It was somewhere in Canada. I can’t remember any of this off the top of my head. So I mean here, –

Dana DuPerron: This is probably – when did you do this course again?

Jill Lewis: This was two years ago!

Dana DuPerron: Yeah.

Jill Lewis: This was – and –

Dana DuPerron: You had a baby in the meantime. That’s just –

Jill Lewis: Yeah, yeah. And it’s just wild now. Now we have so much more evidence. We have so much more science. We have the government telling us that we’ve got to stay home, work from home. I mean the messaging is – so even those few cases I don’t think will be helpful.

Dana DuPerron: Yeah, it’ll just be such a different – do you mean it’ll be just such a different landscape, such a different –

Jill Lewis: We are in a whole different landscape, exactly.

Dana DuPerron: Yeah, yeah.

Jill Lewis: So it is going to be so interest to see what happens. And just quick, for anyone who is in a private, not unionized or not – sorry, not private – provincially regulated, within a provincially-regulated employer who still have one of these mandates, or if you’re an employer who has a mandate. You know, maybe take a look at that? Maybe just have it looked at. I think that’s all I’ll say, is that this stuff has to change as we’re going. Like it has to be updated.

Dana DuPerron: Yeah, yeah. You have to – you know, as we always say with any policy, you’ve heard us say it before maybe, if you ever listen. [mutual laughter]

Jill Lewis: No, this is the first time we were like –

Dana DuPerron: We’re just tuning in. You’ll hear it again, if you ever listen again.

Jill Lewis: All I wanted to hear about federal mandate, that’s it.

Dana DuPerron: Yeah, but you know, any kind of policy that you have, it’s not like you have this policy, boom! It’s done, never think about it again. And these policies were implemented for a very specific purpose so you kind of have to think about those as we – well, and as we sort of roll with it, right? It can’t be like, it was implemented with this purpose, if that purpose changes we don’t review it.

Jill Lewis: Exactly.

Dana DuPerron. There’s all sort of context there that you kind of have to think about.

Jill Lewis: Yeah, yeah, yeah.

Dana DuPerron: So interesting development. A lot of people are hopefully back to having those paycheques and stuff, which is helpful for I’m sure it’s been a really difficult time.

Jill Lewis: Yeah! So that’s the update.

Dana DuPerron: It’s interesting. Buzz issue right now, right? We’ll see what happens unfortunately. As I always ask people when we’re talking about mitigation and stuff, like how long it’s going to take you to find a job. Look in your crystal ball. We don’t have a crystal ball here. I am waiting with baited breath just to see how this goes, just as like a law nerd. When we talk about how much things have changed in the past two years, and how the pendulum has swung on different issues, I am curious to see what’s going to happen.

Jill Lewis: It’ll be interesting! Alright, thanks guys so much for listening.

Dana DuPerron: OK, bye.

Jill Lewis: Bye.


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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