Author: A Concerned Canadian
Introduction
There is no question that the vaccine mandates being rolled out across Canada have crossed a line with a lot of workers, straying into their personal health choices and linking it to their livelihood in a manner that is invasive, burdensome and infringing on health freedoms. Over the past month or so I have been delving into the law and trying to understand whether my employer could be breaking laws in enforcing this mandate and looking for leverage and strategies for fighting back.
If you are fighting back or are planning to, first be clear in your mind as to what your goal is and where your red lines are. Do you want your employer to rescind their vaccine mandate? If so, you may need allies for that and a unionized environment may be more appropriate for that battle. If you can't live with the vaccine mandate and are ready to not work for this employer if they continue with it, then you may want to claim your employer has broken their employment contract with you and you want severance pay as a result. Note that typically severance is not offered to employees that have been working for an employer for less than two years, so this may not be an option if that's your circumstance. Do you want to continue working for your employer even if they keep the mandate in place? Then perhaps you are asking for some reasonable accommodation - the right to maintain privacy on your status, a medical or religious exemption or the option of doing rapid testing. Any of these options signify agreement with the overall mandate, but may be the middle ground you need if your alternative employment options are limited.
I am not a lawyer and this is not legal advice. I'm also still in a formal complaint process with my employer so this is an evolving situation with an unknown outcome, your mileage may vary! But I did want to put some ideas out there for other Canadians to explore and to introduce some terminology that wasn't that familiar to me, but could make a big difference in how much power you will have in this process.
Be Reasonable
If you are like me, you have some very highly charged emotions around these mandates, but it's very important for you to come across as a reasonable person in all of your communications if this ever ends up in court. Much of the privacy, common and contract law that I'm about to discuss relies on the concept of a reasonable person; so the more calm, clear and collected you are, the better your chances. Don't hold back if you are offended by your employers actions, but do it in a professional way that shows your thinking is coming from a place of reflection rather than a knee kerk emotional response.
For myself, being reasonable also includes not coming across as an anti-vaxxer. The mainstream narrative holds that an anti-vaxxer is not a reasonable person, because they are denying 'the science'. So be careful of this, it's a sticky one.
Your Privacy Rights
Your vaccination status is Personal Health Information and it is private. Making a statement to the effect that you only share this information with your physician or other health care provider is a good way to pre-amble your assertion of privacy rights. It's also fair to say that a highly charged political and social environment currently exists around vaccine mandates in Canada which makes your vaccination status even more sensitive than a typical piece of health information.
Your employer may be breaking the law in asking you to attest or show proof of your vaccine status, especially if they do not provide you with an option of "Prefer not to say" and compel you to attest or show your status based on some threat or other. Mine threatened me by saying that I was required to respond either way or I would be in breach of the internal code of conduct, which has a disciplinary process attached to it. This is more heavy-handed than other employers who have respected an employee's right not to disclose private information.
In terms of exactly what laws apply, Provincial health privacy laws are as follows:
⦁ An Act Respecting the Protection of Personal Information in the Private Sector (Quebec)
⦁ The Personal Information Protection Act (British Columbia)
⦁ The Personal Information Protection Act (Alberta)
⦁ The Personal Health Information Protection Act (Ontario), "with respect to health information custodians"
⦁ The Personal Health Information Privacy and Access Act (New Brunswick), "with respect to personal health information custodians"
⦁ The Personal Health Information Act (Newfoundland and Labrador), "with respect to health information custodians"
⦁ The Personal Health Information Act (Nova Scotia), "with respect to health information custodians"
If you are in a province where these acts only cover healthcare providers, they likely do not apply to your workplace.
The Personal Information Protection and Electronic Documents Act of 2004 (PIPEDA) applies to all private businesses and government agencies asking a client for private information - so it's a good one to review to understand your rights around a business asking for your vax pass, but doesn't cover most private sector Canadian workers. Interestingly, however, PIPEDA does apply to the workplace context of federal government workers and federally regulated businesses (banks, telecom etc.).
Under PIPEDA, there are set of fair information principles that govern the collection, processing, usage and disposal of private data. You can review these here and judge how well your employer had done in each category.
One of the no-go zones of the PIPEDA information principles is:
⦁ profiling or categorizing individuals in a way that leads to unfair, unethical or discriminatory treatment contrary to human rights law.
You can also make the case that the request for private information is unreasonable based on a lack of clarity about how the information will be used, who will have access to it and whether it will be adequately protected from a data breach. Remember that a data breach isn't just an electronic event, it could be a co-worker inferring your vax status because you are clearly being treated differently.
The drawback with PIPEDA is that you can't directly sue an employer for breaching it, all you can do is make a complaint to your provincial privacy commissioner and they will follow up with your employer. So you potentially get them in trouble with their regulator and that might offer you some leverage if you played the card at the right time, but I wouldn't make it the cornerstone of my strategy personally.
If your workplace privacy rights are not covered under a Provincial Privacy Act or PIPEDA, your only other source of remedy is common law. Under common law there is a tort called 'intrusion upon seclusion', which essentially protects your right to be left alone and not be unreasonably intruded upon. The key aspect of success of any claim of intrusion upon seclusion is that the intruding act was highly offensive - so would a reasonable person think that your employer asking for your vax status is highly offensive? That might be a tough one to argue with a judge, in an environment where so many places are asking for a vax pass as a condition of entry. However the relationship you have with your employer is very different from your relationship with a rock concert or a restaurant. Speaking personally, I was highly offended when my employer asked me for my status. It really is none of their damned business and this is not a historically normal or proper thing for an employer to be asking for, especially with intent to discriminate.
Trespass
Another common law area that potentially comes into play with these mandates are the torts of trespass that deal with persons. Your body is your property; by enacting vaccine mandates and rapid testing in the workplace, your employer is claiming jurisdiction over your body. Claims of assault may be possible, or even battery if vaccination is forced. I would expect this argument would only work where no religious or medical exemptions are offered.
Fraud
If you did not respond to the request from your employer for an attestation over privacy concerns and then they mark you as "unvaccinated' in their database, that is arguably an act of fraud in your name, as they have no factual basis to do that. This is even more likely to win in court if you were actually fully vaccinated at the time that the employer made the record.
Human Rights
Your human rights are outlined in the Charter of Rights and Freedoms and in the Canadian Bill of Rights. The language in these documents is open enough that it could be applied to vaccine mandates, but in my opinion, may be too vague to land a killer blow legally.
Also, it really doesn't look like our Provincial Human rights Commissions have Canadians' backs on this at all if you read their policy positions:
So while our human rights are certainly being infringed upon, I don't hold out any faith in these organizations to advocate for those that are opposing the mandates - they have closed ranks with the government.
Employment Agreements
Employment agreements or contracts are generally a document that you sign when you accept a job offer; a verbal working agreement is also a legally binding contract. Employment agreements contain explicit terms like hours, salary and place of work. There are also, lesser known implied (unwritten) terms of an employment contract which are:
⦁ The implied duty to maintain mutual trust and confidence
⦁ The implied duty of fidelity
⦁ The implied duty to provide a safe place of work
My impression is that employers are hanging their entire legal strategy on this third implied term i.e., they are ensuring a safe workplace by enforcing the mandate. Employers may say they have taken advice from government public health and in the case of larger organizations, their Chief Medical Officer. It would be wise to ask for exactly the guidance your employer is basing their mandate on and seeing whether it really gels with their policy or approach.
Health and safety measures also need to be reasonable and I think an employee has a decent shot at arguing that invasive medical procedures were never an implied term of their agreement, especially if that is not customary in your profession. I am using the phrase 'invasive medical procedures' because it covers both vaccination and rapid testing, so in one sentence I can also reject the option of twice weekly deep swabbing of my nostrils as an alternative to vaccination. Some people are finding that rapid testing option generous where it is offered and I suppose it is better than losing your livelihood, but honestly it looks very much like collective punishment and coercion to medicate to me. Submitting to rapid testing is agreement with the change of employment terms, so you will lose any leverage that you have to claim breach of contract.
For the employer's argument of health and safety to hold, they need to provide evidence that mandating vaccines will reduce transmission of Covid-19 in the workplace. There is, to my knowledge, no scientific literature to support this position. The vaccines were designed to reduce a person's risk of severe illness or death from Covid-19 and were not tested to determine the level to which they would reduce transmission. Given the substantial change in working conditions, workers are owed a substantial explanation of exactly how the workplace will be safer under a vaccine mandate. I haven't been provided such an explanation by my employer, have you?
"Mandatory vaccination policies are not without some risk for the employer. Employers with a unionized workforce run the risk of their policy being grieved and subjected to arbitration. In the non-union context, employers are at risk of facing a constructive dismissal claim from a disgruntled employee who considers the vaccination policy a unilateral and substantial change to their employment contract."
Sheila Lanctôt and Evan MacKnight, Stewart McKelvey LLP
Make no mistake, claims of constructive dismissal and union grievances are the number one thing that employers are afraid of at the moment; it is their weak spot, their Achilles Heel - let's use it!
Constructive Dismissal
Claims of constructive dismissal are notoriously hard to win in court, but it may not need to get there. All you have to do is look like you have lawyered up and are ready to go to court over this and your employer might cave - i.e., offer you a severance package. It is kind of like a game of chicken and it takes some bravery to do this. After all, you have to be willing to lose your job in the course of fighting back; perhaps your employer is allowing exemptions for now and making allowances, perhaps you have been told to work from home so the rules don't apply to you yet. But if you are going to fight back, you need to do it now as the change is enacted - failure to act now is aquiescence to the change and you won't be able to use this legal remedy at a later date.
Building a case of constructive dismissal has a natural flow to it; you need to show that you followed all the internal procedures available to you to challenge the change in employment terms prior to you either being fired or quitting. Here is what that flow looks like:
⦁ Begin to document a timeline of when the vaccine mandate was announced and all of your actions in response to it as well as actions and communications on your employer’s part.
⦁ Gather as much information about your employer's vaccination mandate as you can - ask for formally approved policies and procedures, ask about how the employer will maintain their privacy duties in regards to your personal health information, ask for the medical rationale for how the mandate makes your workplace safer.
⦁ Communicate your concerns about the mandate with you manager, both in person and via email
⦁ Communicate your concerns with your human resources representative, both in person and via email
⦁ If your concerns aren't meaningfully addressed to your satisfaction, ask to be directed to your internal grievance, formal complaint or formal escalation procedure
⦁ Craft an email for your formal complaint using legal language (more on this below). If possible get an employment lawyer to review it before you send it in. The key points to state are that you don't accept the revised terms of employment and that you are working under protest until the complaint is resolved.
⦁ Follow the internal complaint procedure and document every step in that process. An employer not having a meaningful grievance process could alone be grounds for a claim of constructive dismissal.
⦁ If the formal complaint procedure does not complete to your satisfaction you then have a difficult choice - acquiesce to the mandate and keep your job or quit and file a claim with an employment tribunal or sue the employer directly. It's highly advisable to talk to an employment lawyer before this step!
Crafting a Formal Complaint
Here is some potential language that you can use in your formal complaint:
The vaccine mandate is a substantial and unilateral change to my employment contract which I do not accept. ** I suggest you start with this line, it will really get their attention**
Workplace access has become contingent on invasive medical procedures which were not an express or implied condition of employment.
The vaccine mandate infringes on my legally protected rights to privacy, bodily autonomy and health freedoms.
I want to retain the right to choose whether to participate in any vaccine that is offered in the coming years based on my own risk assessment and making the right health choice for myself, rather than have that decision encumbered with potential loss of livelihood.
The rationale for this change of employment terms has not been established. <Your employer> has not provided meaningful information or a scientific basis on how this vaccine mandate reduces the risk of transmission of Covid-19 in the workplace. **May not apply in your case - also consider whether you want to argue medical facts in front of a judge or tribunal at a later point, especially given the current climate of censorship of dissenting physicians**
Vaccination status is a legally protected characteristic and as such it contravenes human rights laws and our internal Code of Conduct to use that protected characteristic for discrimination purposes **Make sure the Code of Conduct piece applies to your workplace**
As of <DATE> I will be working under protest until this matter is resolved. ** For this I chose the date where the vaccine mandate comes into force**Definitely end your complaint with this. **
Working Under Protest
The passage of time is your enemy in building a case for Constructive Dismissal - the longer time elapses before you formally fight back the less firm your ground is for a legal remedy. When you are into a formal dispute with your employer over a change in employment terms, announcing you are working under protest gives you some legal cover and buys you some valuable time. It means you can still keep your job (unless your employer is firing you for not being vaxxed), but shows that you are clearly not accepting the change. It would be wise to re-affirm you are working under protest by emailing your manager each time you get paid while you are in that state.
Conclusion
I hope this brief guide is useful for you and provides you with more options than you had previously. I stand in solidarity with all people across the world who are pushing back on the bio-medical surveillance state that we see being formed all around us. We are many, they are few. The reckoning is coming. #StandUpCanada #NoVaccinePassports #StrongerTogether
References:
https://www.stewartmckelvey.com/thought-leadership/mandatory-vaccines-in-the-workplace/
https://employmentlaw101.ca/constructive-dismissal/
https://www.theglobeandmail.com/canada/article-can-your-workplace-mandate-covid-19-vaccinations/
https://www.dmlp.org/legal-guide/elements-intrusion-claim
https://www.lawwithin.com/post/tort-of-trespass
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