Crown corporation had to follow government mandate; remote workers could return to office
In August 2021, the New Brunswick provincial government announced that it was implementing a mandatory COVID-19 vaccination or testing policy for all provincial government employees. Vaccination would also be a condition of employment for new hires.
In October, the Omicron variant of COVID-19 caused a spike in cases, so the provincial government announced that all government employees in the civil service, education system, health-care system, and Crown corporations, along with long-term care staff must be fully vaccinated by Nov. 19. Any employee who was not vaccinated or did not have a valid medical exemption would be placed on unpaid leave.
The next day, a memo was sent to government employees stating that employees had until Nov. 19 to provide proof of vaccination or get a medical exemption. Any employee who didn’t would be placed on leave without pay.
WorkSafeNB, a Crown corporation that oversees the implementation and application of New Brunswick’s Occupational Health and Safety Act, was subject to the vaccine mandate. Early in the pandemic, it allowed non-essential workers to work from home. However, they could be called into the office at any time and they retained their workstations and passes to enter the building.
WorkSafeNB informed its employees of the vaccination mandate and clarified there were no exceptions, even to those working from home.
One employee, LS, was a support clerk who reviewed claims. She was assigned to work from home at the start of the pandemic and did not go into the office except for one week in August 2021 for a training session.
LS told WorkSafeNB that she was not vaccinated and would not be, as she felt it was a “bigger risk than benefit” and she felt the mandate involved “threats and coercion and absolutely no informed consent.” She added that she had no exposure to other people and she wasn’t “much of a threat.”
WorkSafeNB reiterated the mandate, but LS did not provide the required proof of vaccination. She was placed on an unpaid leave of absence on Nov. 22 until March 28, 2022, when the province lifted vaccination requirements.
A document processing clerk, WB, was required to stay in the office at the beginning of the pandemic because of her duties. She requested to work from home as an indexer, which was granted on the condition that if required she would return to the office to replace an absent employee.
WB remained home during the pandemic except for two weeks in the summer of 2021 because she needed a WiFI connection. In September, she took time off and only heard about the mandatory vaccination requirement when her supervisor told her. She said that she would not get vaccinated until WorkSafeNB provided answers to a list of questions, including the testing of the vaccine and if it would be liable for any adverse reactions.
WorkSafeNB referred the worker to the government’s website on COVID-19 and, when she didn’t provide proof of vaccination, put her on unpaid leave on Nov. 22. As with LS, she was returned to work on March 28, 2022.
LS and NB filed grievance against the vaccination mandate, alleging that it was unreasonable to require employees working from home to get vaccinated. LS said that the suspension without pay affected her financially, while WB said that it was her personal choice not to be vaccinated and WorkSafeNB punished her because of that choice.
The union also filed a policy grievance, arguing that the mandatory vaccination requirement for employees working from home was unjust because they didn’t affect the health and security of other employees or the public.
The arbitrator found that the vaccination policy that WorkSafeNB implemented, along with the government’s mandate, was proportionate to the circumstances of the pandemic and the need to ensure employee health and safety. The question was whether it was necessary to apply it to employees working from home.
The arbitrator also found that the policy was consistent with the collective agreement, which stated that it could not require the employer “to do anything contrary to any instruction, direction or regulation given or made on behalf of the Government of the Province of New Brunswick in the interest of the health, safety or security of the people…”
In addition, the agreement permitted WorkSafeNB to exercise is managerial authority to enforce safety, said the arbitrator.
The arbitrator also found that the policy was reasonable. At the time of implementation, there was nothing indicating that employees working from home would not be required at some point to return to the workplace. In addition, remote employees had the discretion to return to the workplace at any time that they deemed necessary, so there was no way that WorkSafeNB could be certain that employees would not be back at work.
The arbitrator also noted that the government’s mandate provided no exceptions, so WorkSafeNB did not have the flexibility to adjust it.
WorkSafeNB also had the obligation to protect employee health and safety and, based on the knowledge and circumstances at the time, the vaccination mandate was reasonable towards that end, said the arbitrator.
WorkSafeNB clearly communicated to employees with the government announcements and its own internal memo the requirement and the consequences of not meeting it, the arbitrator added.
The arbitrator determined that the mandatory vaccination policy was valid and reasonable and dismissed the grievances. See Canadian Union of Public Employees, Local 1866 v. WorkSafe New Brunswick, 2023 2023 CanLII 1.
