On October 6, 2021, the federal government announced that federal public servants in the Core Public Administration (CPA), including members and reservists of the Royal Canadian Mounted Police (RCMP), would be required to attest to their COVID-19 vaccination status by October 29, 2021.
Under the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Policy”), those unwilling to disclose their vaccination status, or to be fully vaccinated, would be placed on administrative leave without pay as early as November 15, 2021, which has been designated as the “full implementation date”.
Unlike other similar policies, a negative test may not act as a substitute for vaccination, except as an accommodation measure for persons unable to be fully vaccinated.
All new hires are also required to be fully vaccinated as a condition of employment and attest that they are fully vaccinated prior to their starting date.
The Policy applies to all employees who are teleworking, working remotely or attending government offices in person, and to contracted personnel accessing federal government worksites. It does not however apply to the members of the public receiving services (e.g., Service Canada, Veterans Affairs Canada, Canada Revenue Agency), locally engaged staff at missions abroad, and members of the Canadian Armed Forces.
The federal government is also asking Crown corporations and separate agencies to implement vaccine policies “mirroring” the requirements announced for the rest of the federal public service.
Additionally, employers in the federally regulated air, rail and marine transportation sectors are also required to implement vaccination policies for their employees that are consistent with the above approach.
All employees were required to disclose their vaccination status by providing an attestation of their status of vaccination through the government’s attestation tracking system and, if required by their manager, a proof of immunization. All such personal information is collected in accordance with applicable legislation, including the Privacy Act, the Policy on Privacy Protection and its related instruments.
Employees have an obligation to provide true attestations. Any false statement would constitute a breach of the Values and Ethics Code for the Public Sector and may result in disciplinary action up to and including termination of employment. Likewise, the Policy makes clear that attestations can be audited and managers can ask for proof of vaccination at any time.
As of November 18, 2021, the federal government reported that 96.3% of its public servants had indicated that they are fully vaccinated, with 2.1% partially vaccinated and 0.4% unvaccinated.
Consequences of Non-Compliance
Employees unwilling to disclose their vaccination status, or those who chose not to be fully vaccinated without an approved accommodation have been placed on administrative leave without pay. In practical terms, those employees were advised not to report to work, or to stop work remotely, and are no longer being assigned hours of work. Their access to the workplace, off-site visits, business travel and conferences has also been restricted.
Moreover, the federal government advised that pension and benefits plans may be affected while on leave without pay.
The Minister of Employment, Carla Qualtrough, has also said that that people who lose their jobs for not complying with employer COVID-19 vaccine policies will “likely” not be eligible for employment insurance (EI).
Employees may request accommodation if they are unable to be vaccinated due to certified medical contraindications, religion, or other prohibited grounds under the Canadian Human Rights Act.
Prime Minister Trudeau has emphasized that exemptions will be rare and that exemptions, whether they are medical, or otherwise, will be exceedingly narrow, specific and, onerous to obtain. He further noted that having a personal conviction that vaccines are ineffective will not be enough to qualify for an exemption. This is consistent with existing case on this issue which stands for the proposition that a mere opinion or personal preference is not sufficient for the duty to accommodate to be triggered. A person seeking an accommodation must be able to demonstrate that there is a genuine need for accommodation.
The federal government reported that 1.2% of its employees requested accommodations as of November 18, 2021. No information is available regarding the basis for the requests or how many requests were approved by management.
It remains to be seen whether the Public Service Alliance of Canada (PSAC), the largest union in the Canadian federal public sector, will launch a legal challenge on behalf of unvaccinated members. Some federal public servants have organized in an effort to avoid complying with the government’s mandatory vaccination rules. What we know so far, is that while the PSAC has criticized the government for implementing the Policy “without meaningful consultation”, it has also encouraged all members to get vaccinated unless they have a valid medical or other human rights exemption.
Employers impacted by these requirements will want to ensure that they are prepared to act quickly to maintain compliance.
If you have questions about mandatory COVID-19 vaccination policies or would like assistance with developing and/or reviewing pandemic plans or policies, a member of our Labour, Employment & Human Rights team is available to assist.
Special thanks to Julien Frigon for his contributions to this article.
Boris Subara is an associate in Fasken’s Ottawa office and is a member of the firm’s Labour, Employment & Human Rights group. He practices in all areas of labour and employment law and provides practical advice and representation to employers and management on a wide range of issues that arise during the course of the employment relationship.
Julien Frigon is an Articling Student in the Fasken Ottawa office. Julien summered with the Ottawa office in 2020.