The Ontario Human Rights commission and other human rights commissions across Canada maintain that mandating and requiring proof of vaccination during a pandemic to protect people at work is generally permissible as long as there are protections in place to ensure that those who are unable to be vaccinated for a Code-related reason can be reasonably accommodated (such as NB, Saskatchewan, Alberta, Man.).   

According to the Office of the Privacy Commissioner of Canada, employees have the right to medical privacy and any personal health information that is collected, used, or disclosed must comply with applicable privacy laws. Employers should also limit their questions to gather only the information that is strictly necessary. However, where a mandatory vaccination policy has been implemented for a legitimate purpose and in a reasonable manner, arbitrators have found the collection and disclosure of vaccination status is permitted because it is the only means of administering and enforcing that policy.

Information commissions across Canada have also pronounced themselves on the permissibility of vaccine passports, of which for the purposes of this response, we consider attestations to be effectively a form of the same thing. 

In light of the above, we observe that the employer is not requesting medical evidence as a standard measure but is relying on individual attestations rather than medical documentation.  While managers do have a right to request proof of vaccination, we expect that these requests will be made on case-by-case basis where a manager has reasonable grounds to question the validity of the attestation provided by the employee.  In this regard, the AJC does intend to make recommendations to the Employer to ensure that the manager’s discretion is exercised reasonably, fairly and in good faith.  The AJC is currently reviewing draft managerial tools and guides and will be advocating with the best interests of its membership in mind. 

Yes, employees who have been placed on Leave Without Pay and who become partially vaccinated will resume work and have their pay reinstated.  However, some should plan for delays in the treatment of their pay file.

The Treasury Board issued a memo clarifying that ESDC is recommending how to treat record of employment (ROE) coding in relation to failures to comply with the employer’s mandatory vaccination policy.  

The AJC takes exception to this coding and intends to challenge the Treasury Board’s approach on the basis that this is inconsistent with their policy. We are currently reviewing our options but will keep you informed of the actions we take to have this clarified and/or corrected.

The AJC and other Bargaining Agents (BA) were initially given an opportunity to review draft policy documents relating to mandatory vaccination prior to the election.  Bargaining agents provided extensive input to the Employer at that time.  While the government was in caretaker mode, however, all consultations ceased.  An inadequate and unreasonable deadline was provided to BA’s to review the policy and framework before the government’s official release. 

That said, the Employer has advised that the policy documents are evergreen, and that the AJC and other bargaining agents can continue to provide feedback and propose changes to improve the policy.  If you have any suggestions on how to improve the policy documents, please send your suggestions to your regional GC representative.  

Employees are being asked to fill out an attestation of vaccination form through GC-VATS, a web platform within the Treasury Board of Canada Secretariat Application Portal (TAP).

GC-VATS will centrally store the attestations and provide access to aggregated data to the Treasury Board of Canada Secretariat, in compliance with the Privacy Act and the security requirements. Similarly, deputy heads and departmental Heads of Human Resources will have access to departmental-level aggregated data.

AJC members must provide truthful information. Failure to do so could constitute a breach of the Values and Ethics Code for the Public Sector and may result in disciplinary action, up to and including dismissal.

Members who are unable[1] to be vaccinated must advise their manager of their need for accommodation based on a certified medical contraindication, religion, or another prohibited ground of discrimination as defined under the Canadian Human Rights Act or the grounds set out in our collective agreement, including creed (which is not covered under the CHRA) at the earliest opportunity or by the attestation deadline, if possible.  Evidence in support of the ground relied upon for the purposes of the accommodation request will be required.

AJC members who are unwilling[2] to be fully vaccinated or to disclose their vaccination status, will be required to attend an online training session on COVID-19 vaccination within two weeks of the attestation deadline. Two weeks after the attestation deadline, the Employer will restrict their access to the workplace, off-site visits, business travel and conferences and the member may also be placed on administrative Leave Without Pay.

The Employer has a duty to accommodate AJC members who are unable to be fully vaccinated based on a certified medical contraindication, religion, or another prohibited ground of discrimination as defined under the Canadian Human Rights Act or under our collective agreement, which could also include those who are partially vaccinated.

If an employee is protected by one of these listed grounds, the employer must work with the employee to identify possible accommodations, which may include mandatory testing.

First, the legal issue arising from mandatory vaccinations in the face of a global pandemic is uncharted territory.  While we continue to assess the situation, the AJC it is not currently satisfied that the mandatory vaccination policy violates the Charter and, if the policy does violate the Charter, the AJC is satisfied that the Employer has a strong argument to uphold the policy, given the government’s pressing need to combat the COVID-19 pandemic and to protect health and safety of public servants. As well, the policy does not violate any of the protected grounds set out in our collective agreement.  Therefore, the AJC will not be challenging the mandatory vaccination policy in court at this time. 

Should the AJC be mistaken in its assessment regarding Charter violations, we are of the view that such a violation would be justified under s.1 of the Charter and the Oakes test, given the global and national pandemic health crisis.  This view has recently been supported by the Superior court of Quebec in a decision from July 2022, in which the court found that the policy was not in violation of section 7 of the Charter, and was justified under section 1. Having said this, we continue to examine the existing policy to ensure that those requesting accommodation are treated fairly, reasonably and in good faith and that the Employer complies with its legal duty to accommodate. 

Given that the AJC has been a proponent and strong advocate of the precautionary principle when it comes to health and safety as evidenced by its guidance to members on ensuring health and safety in court and tribunal proceedings as well as by formal submissions it has made to Treasury Board, the Department of Justice, Public Prosecution Services Canada, Courts Administration Service, Chief Justices and Attorneys General across Canada, and our support for the broadest possible form of vaccination, the AJC currently has no intention to initiate court injunctions or other grievance proceedings to challenge the mandatory nature of the policy. 

The AJC will however consider individual grievance support requests relating to unreasonable, unfair and bad faith implementation of the policy or discretion under the policy, including the failure to accommodate on grounds protected under the AJC’s collective agreement ( i.e. age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, gender identity and gender expression, family status, mental or physical disability, membership or activity in the Association, marital status.) 

The AJC may also consider policy grievances in connection with any process related issues that in our view undermine the terms of our collective agreement and our members’ rights thereunder, if after, providing the Employer with feedback, the Employer refuses to rectify the situation.

Even if the AJC were to initiate proceedings such as a grievance, the general rule for any employee is to comply and then grieve, otherwise known as the ‘work now, grieve later” rule.  So, in very practical terms, there is no way of avoiding the consequences from a failure to comply by providing an attestation. 

Partially vaccinated employees will be placed on Leave Without Pay if they have not received their second dose by 10 weeks after their first dose. Partially vaccinated employees may be subject to temporary measures, such as teleworking or testing, for the period of time for which they remain partially vaccinated. Please note that 699 Leave or “Other Leave With Pay”, is not available for employees unwilling[1] to be fully vaccinated or unwilling to disclose their vaccination status.

Members require AJC support to file an individual grievance on all matters relating to the application or interpretation of the collective agreement (s. 208 (4) of the FPSLRA).  However, members can file an individual complaint with the Office of the Privacy Commissioner without the AJC’s support.  

Members are encouraged to review the Joint Statement by Federal Provincial and Territorial Privacy Commissioners on Covid-19 Passports. As well, members can visit the offices of the information commissioner’s website for its guidance on exemptions from disclosure in regards to privacy and personal information. 

In a recent decision, the Federal Court of Appeal provided clarification on the interpretation of section 4 of the Privacy Act and confirms the expression “relates directly to an operating program or activity of the institution” does not, “clearly mean “necessary” and that it would have been easy for Parliament to incorporate this stricter burden if it wished to do so”.  

The Government of Canada’s mandatory vaccination policy came into effect on October 6^th 2021, mandating Covid-19 vaccinations for all employees in federally regulated workplaces, including AJC members, regardless of whether they work onsite, remotely, or telework. 

Federal public service employees must attest to being fully vaccinated against COVID-19 by Friday, October 29, 2021. 

Those who are unable to provide a signed attestation of vaccination and/or who do not obtain an accommodation on or before the attestation deadline, will be placed on leave without pay two weeks after the attestation deadline.

Members requesting accommodation or returning from a leave of absence after October 15, 2021 have a revised attestation deadline of 2 weeks after the manager’s decision that the duty to accommodate does not apply or 2 weeks after their return from leave, as the case may be. 

The federal government’s vaccination policy applies to all employees in the core public administration, including the RCMP, CBSA, Correctional Services and employees working remotely.   This is just as much about protecting you from serious illness as it is to protecting others.

The current default work-from-home policy is a temporary pandemic measure put in place to protect the Health & Safety of all Canadians. However, as the Employer has explained, employees may have to enter the workplace to collect equipment, attend scheduled meetings or events, access sensitive information, or address urgent operational requirements.   

In addition, the Employer is in the throes of planning to ease restrictions over time and have employees return to the workplace.  All employees asked to return to the workplace by a certain timeline will be required to comply, subject to any teleworking arrangement they may conclude before or after their return to the workplace.  No one should expect that the current remote working arrangement is a full-time or indefinite arrangement and that all operational requirements are being met during the pandemic.  Courtrooms are expected to also resume their in-person activities over time despite the fact that many technological improvements exist to allow for virtual hearings.

We don’t know.  This is one of many questions that we will be putting forward to Treasury Board. 

As it has been the case since the beginning of this global pandemic, the AJC’s priority continues to be the health and safety of its members.   Consequently, the AJC supports the broadest possible vaccination of Canadians, including public servants, to combat the COVID-19 pandemic and to protect the health and safety of public servants in the workplace.  Mandatory vaccinations and mandatory masking in workplaces, including courtrooms, subject to permitted exceptions, are ways to ensure that the health and safety of our members are protected.

Pursuant to the authorities outlined in the Financial Administration Act, Part II of the Canada Labour Code and the collective agreement’s management rights clause (article 5), the Employer has the authority to establish policies including policies that ensure the health and safety of its workers provided such policies A) comply with the law and the constitutional rights of our members (article 6) and B)  are fair, reasonable and in good faith within the limits set out in  collective agreement including the no discrimination clause  (article 36).

The Employer has advised that the policy documents are evergreen, and the AJC intends to continue to advocate for improvements and changes it considers to be in the best interests of our members. We continue to review the various policy documents, tools and guides in order to provide feedback to the Employer on ways to improve the process and ensure that those requiring accommodation receive it.

We continue to encourage all our members to get fully vaccinated and remain committed to assisting our members, on a case-by-case basis, to ensure that the Employer meets its duty to accommodate and complies with its legal and collective agreement obligations.

The AJC will also continue to advocate to the Employer to ensure that all workplaces are healthy and safe, and lobby the Employer to ensure that courts within its jurisdiction universally comply with its mandatory vaccinations policy, notwithstanding any alleged claims of judicial independence.

Yes, there is a risk of a delay in the treatment of your file with the risk of putting you in an overpayment status. https://www.canada.ca/en/government/publicservice/covid-19/vaccination-public-service/i-am-unwilling-to-be-vaccinated.html

So far, the National Advisory Committee on Immunization (NACI), the advisory body that provides recommendations on vaccination in Canada, has not recommended booster shots for Canadians.  

No one can be physically forced to get a vaccine against their will.  However, employers have an obligation to keep workplaces safe and, in the context of a global pandemic, can, in the AJC’s view, require employees to be vaccinated to continue to work subject to any duty to accommodate obligations they may have.

The duty to accommodate can be applied if an employee is unable to get the vaccine for grounds listed in the Canadian Human Rights Act, such as disability or religious belief or in the case of the AJC’s collective agreement, creed (which is not listed in the CHRA).   If an employee is protected by one of these listed grounds, the employer must work with the employee to identify possible accommodations, which may include allowing the employee to work remotely for the foreseeable future.

For those who have elected not to be vaccinated based on personal preference, there is no legal obligation for the employer to accommodate the employee.

Information regarding the impact LWOP has on your pay, benefits and group insurances can be obtained from your compensation advisor. You may also wish to explore the list of other things to consider when on LWOP here: https://www.tpsgc-pwgsc.gc.ca/remuneration-compensation/services-pension-services/pension/info/ticnp-lwpip-eng.html

The AJC’s priority continues to be the health and safety of its members and our position on the mandatory vaccination policy has not changed. We continue to support the broadest possible vaccination of Canadians, including public servants, as an important layer of protection to combat the COVID-19 pandemic and to protect the health and safety of public servants in the workplace.

We have continued to review this issue in light of the evolution of the COVID-19 pandemic. An ever-growing body of scientific studies suggest that while vaccines are less effective at preventing infection and symptomatic illness by Omicron as compared to previous variants, they still provide protection against serious illness, hospitalization and death. Some research supports that a full course of vaccine continues to decrease the risk of infection and symptomatic illness – which in turn assists in lowering the likelihood of transmission. The ongoing burden placed on our healthcare system by Covid-19, and by extension on our members’ ability to seek the preventative and primary care they and their families need can also not be overstated.

The AJC continues to advocate for improvements and changes it considers to be in the best interests of our members. We provided comments in the last round of feedback provided by bargaining agents in March, 2022 in advance of the Employer’s review of the policy, and continue to advocate along with other bargaining agents for the release of a six-month review by the employer.

We don’t know.  This is one of many questions that we will be putting forward to Treasury Board

If employees are on leave without pay for a period of 5 days or longer, they will be temporarily struck off strength in the pay system and they will be issued a record of employment.  The rules governing eligibility to EI are available here: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/digest/chapter-6/periods-of-leave.html

Yes, the form requesting accommodation provides for temporary accommodation requests.  We encourage all members with medical conditions to consult their medical practitioner in the event they have concerns regarding vaccination.