Yukon Employees' Union received the Yukon Government's Order In Council 2021/151 Public Health and Safety Act containing the Public Services (COVID-19) Vaccination Regulation late on the evening of November 29, 2021.
Please Note: The regulation states that any worker who enters their workplace on or after December 1 while on administrative LWOP is subject to a summary conviction and will be fined $500.
Read the Yukon Employees' Union's Statement on Implementation of YG's Mandatory Vaccination Regulation, released to the media at 12:30 pm, Tuesday November 30th.
YEU strongly supports a vaccine mandate. We believe that a vaccinated workforce our best recourse for increased occupational health and safety. We acknowledge that for many reasons, some of our members may be unable to choose vaccination. We know too that there are privacy concerns and for some, strong opposition to the idea of a vaccine mandate.
Yukon Employees' Union will continue to support the enhanced workplace safety a vaccination policy can provide, but we are also here to support the legitimate human rights of our members who are medically unable to be vaccinated. For those who choose not to accept the vaccine, we believe that the employer has an obligation to consider alternatives to leave without pay or disciplinary action, including remote work, PPE and rapid testing.
This is a challenging time, but we are working hard to find solutions that offer enhanced safety and security for all workers. Read the latest updates on our website's News page.
Below are some FAQs and responses tailored to our situation in the Yukon.
Does the Union support the vaccine mandate?
Yukon Employees' Union supports leading medical science that suggests vaccines are the most effective way to control the COVID-19 pandemic. We strongly encourage everyone to get vaccinated to protect yourself and vulnerable persons you may work with.
The Union plays an important role in workplace health and safety and we view this step as a key step in supporting safe workplaces. We will continue to consult with those employers who are mandated by the Yukon Government to implement vaccines.
The Union does not support options that lead to loss of pay, disciplinary action or that fail to consider all reasonable alternatives. The Union recognizes that this is a difficult and stressful time for many and we will continue to try and mitigate impacts on the membership.
Why is the Union taking this approach?
The Union must follow the law. In Canada, this means we are bound both by acts of parliament and the legislature as well as case law decided by arbitrators, adjudicators and courts. Legislation and case law set the framework within which the Union must operate and we are generally limited to addressing concerns in the employment context.
At this time, the case law around mandatory vaccinations during a pandemic is unclear though we expect to see case law continue to emerge. Recent case law indicates that restrictions implemented to date are being seen by the courts as reasonable limitations on rights and freedoms.
Existing employment case law related to vaccines indicates that arbitrators, adjudicators and courts have given significant latitude to employers when mandating vaccines for health and safety reasons. While widespread vaccination mandates have not made their way before decision-makers, there is a definite possibility that they will rule in favour of such employer actions or may rule in favour with some restrictions.
The Union must also be careful that it does not advance cases likely to lead to decisions unfavourable to the Union that will further confine the Union’s ability to advocate for its members. Both YEU and PSAC are currently exploring all our options and will release more information on next steps as it becomes available.
Can the Union block the mandate?
Canadian legislation governs what the Union can do and how it can act. For Government of Yukon employees, the appropriate legislation is the Yukon Public Service Labour Relations Act. For non-government workers, it is the Canada Labour Code. Both restrict the Union by law to the grievance and arbitration/adjudication process for resolving disputes. Collective Agreements are required to be negotiated in keeping with this legislated framework.
The Union cannot break the law without serious implications. The grievance and arbitration/adjudication process must follow the steps outlined in legislation and in the appropriate Collective Agreements. Grievances can take a significant amount of time, with no guarantees of success. In general, the principle of ‘obey now, grieve later,’ must be followed meaning employees are expected to obey direction while the grievance process plays out. Employees who do not obey direction could face disciplinary action.
The Union is exploring all legal options available to address concerns with the Government’s announcement. The Union supports vaccination and encourages all members to vaccinate but we have identified shortcomings and possible implications for members who cannot or choose not to vaccinate. More information will be shared as it becomes available.
Do I have to disclose my vaccination status?
The Yukon Public Service has not released its policy for implementing mandatory vaccination. It is not clear at this time if the Employer will require disclosure. Other employers affected by the mandate are in process of creating their own policies.
While jurisprudence doesn't exist for widespread mandatory vaccination, employers have mandated vaccines prior to COVID-19 on a more limited scale. Arbitrators, adjudicators, and courts have ruled in the past that the collection of vaccination status was permissible as the only means of enforcing such a policy. The Union must take its guidance from arbitral and court decisions as such decisions are binding and precedent setting.
Employees do have a right to medical privacy and the confidentiality of their personal health information and any future policy of the Yukon Public Service/other employers must comply with applicable privacy laws. The Employer will be expected to limit any questions to gathering only the information that is strictly necessary.
When is the deadline for me to be fully vaccinated?
On October 15th, 2021 the Government of Yukon announced that all public servants, teachers, as well as those who work in hospitals, long-term care homes, medical clinics and allied health care settings as well as those who receive government funding to provide services to vulnerable persons and congregated living situations will need to be vaccinated by November 30th, 2021.
Some Government of Yukon employees and other YEU members work in Federally-regulated settings. Employees in those workplaces are required to be vaccinated in keeping with Federal requirements. The deadline to vaccinate in these workplaces is October 29th, 2021.
How can I be accommodated?
At this time, we suggest members with a protected characteristic begin gathering supporting documents. If a member requests assistance of the Union, these supporting documents will be needed to advocate on your behalf.
Members with medical/disability reasons should expect to provide documentation from a medical practitioner indicating that they are unable to be vaccinated and whether this inability is permanent or expected to change with time.
Members with religious exemptions should be prepared to provide documentation from leaders within their religious institutions demonstrating a deeply-held theological objection to vaccinations.
I'm pregnant; does the vaccine requirement apply to me?
Yukon Government's Public Service Commissioner has advised YEU as follows:
YG employees who are pregnant are required to be fully vaccinated by January 30, 2022, having received the first dose by November 30, 2021, pursuant to the mandatory vaccine regulations soon to be in effect.
Any YG employee can request a medical exemption from the requirement to be fully vaccinated through their family physician. Pregnant woman can talk to their doctor and start the medical exemption approval process if they choose to do so.
Regarding maternity leave benefits, both employment insurance (EI) and maternity leave allowance payments (top up); YG has no control over the EI portion of maternity leave and there are many variables in an employee’s personal situation that can impact their EI application and eligibility period. Regarding top up, in order to be eligible for it, an employee must be approved for, and in receipt of EI as per the collective agreement.
What happens if I don't get vaccinated?
The Yukon Public Service has not released a policy yet, while other affected employers are beginning to release their policies. Yukon Employees' Union is making our best efforts to ensure that those who choose not to get vaccinated do not face loss of pay or disciplinary action.
At this time, members who choose not to get vaccinated should be prepared for all possibilities including loss of pay; there are no guarantee the Union’s efforts will be successful.
Can I grieve the vaccine mandate?
The COVID-19 vaccine mandate will affect the entire bargaining unit. As a result, the most appropriate grievance will be a policy grievance. Policy grievances are filed by the Union on behalf of the bargaining unit.
At this time, while the Union supports vaccination, there are concerns that announcing the decision prior to implementing of a policy was arbitrary. The Union is exploring several options to address any concerns about arbitrariness.
There may be some unique circumstances where an individual grievance is warranted, such as if a medical or religious exemption is denied. Members in these circumstances should do an intake with the Yukon Employees’ Union to discuss their individual circumstances. Members who are denied a medical or religious exemption may also wish to do an intake with the Yukon Human Rights Commission. Please remember that the grievance process is a retroactive process that can take considerable time to resolve, and the Union cannot guarantee success or a lack of impact on members while the grievance process unfolds.
Is the Union required to file a grievance for me if I request it?
Unions in Canada have a ‘Duty of Fair Representation.’ This means that Unions cannot act in an arbitrary manner, a bad faith manner or a discriminatory manner. This does not require the Union to represent every member in every circumstance or in the manner preferred by the member.
If a member requests an individual grievance, an appropriate Union Representative will turn their minds to your concerns and make an individualized assessment of your request.
Legislation in the Yukon such as the Yukon Public Service Labour Relations Act requires consent of the Union to file any grievance related to interpretation of an article of a Collective Agreement.
If I'm placed on Leave Without Pay because I'm not vaccinated, can I collect EI benefits?
An employee cannot receive EI payments when on leave without pay, as Employment and Social Development Canada’s eligibility requirements consider it to be the same as “if you voluntarily left your job without just cause.”
The Union continues to advocate for a policy that does not place members on leave without pay.
Will I still be a YEU Member if I'm placed on Leave Without Pay?
If you are a member of the Yukon Employees' Union who expects to be placed on Leave Without Pay after the November 30 deadline, we encourage you to complete the form linked below. Doing so will send a request to the PSAC head office in Ottawa that your union membership be maintained as a member in good standing while on unpaid leave.
This is particularly important if you wish for continued access to the representation services of YEU and PSAC.