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Labour board rules federal COVID-19 vaccine mandate was not 'disguised discipline'

A vaccine is shown in the hands of a health care professional. (Getty Images) A vaccine is shown in the hands of a health care professional. (Getty Images)
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The Treasury Board's COVID-19 vaccine mandate that suspended employees who refused to be vaccinated was an "administrative measure" to ensure the health and safety of federal employees, and not "disguised discipline," according to the Federal Labour Relations Board.

Two federal employees suspended without pay for refusing to comply with the vaccination policy in 2021 filed a complaint, alleging their suspension was "disguised discipline that sought to correct their behaviour and induce them to become vaccinated."

One of the employees worked onsite, while the other worked from home under a telework agreement. According to the ruling, the two employees alleged their suspension without pay was a violation of their rights protected under the Canadian Charter of Rights.

The federal government implemented the COVID-19 vaccine mandate in October 2021, requiring all public servants in the core public administration, including the Royal Canadian Mounted Police, to be fully vaccinated against COVID-19.  Employees who refused to be fully vaccinated or to attest to their vaccination status were placed on leave without pay.

In a ruling released at the end of March, the board dismissed the grievances by the two employees, concluding the COVID-19 policy was an "administrative action based on the scientific evidence available at the time."

"It was an action that the respondent took to ensure that the health and safety of public servants in the core public administration were protected," adjudicator Amelie Lavictorie wrote.

"It was a reasonable response to an operational need that was established by evidence, which was a need to safely increase the number of staff working onsite. The policy’s main objective was to ensure that the employer complied with its legal obligations to its employees."

Lavictorie said that while suspending the two employees for failing to comply with the mandate had an "adverse effect on them," it was based on their own decisions.

"They knew and understood the consequences of failing to comply with the policy," the ruling said. "Although the choice of whether to comply with the policy was difficult and had consequences, they made informed choices, on principle."

The board dismissed the grievances, citing a lack of jurisdiction.

"The fact that the policy was unprecedented does not make it, by that very fact, a disciplinary action, the ruling said.

"The employer provided supporting evidence for its position that the policy is an employment-related measure."

The hearing took place in two phases lasting 10 days, with evidence from nine witnesses.

The Federal Labour Relations Board administers the collective bargaining and grievance adjudication system for the federal public sector, and is responsible for resolving staffing complaints.  It has the power to rule on whether an issue is a disciplinary action.

 According to the ruling, the two employees remained suspended without pay until the Treasury Board suspended its COVID-19 vaccine mandate in June 2022.  The two employees returned to work after the mandate was lifted.

In November 2021, the government said that 95 per cent of federal public servants were fully vaccinated, and 98 per cent were fully or partially vaccinated.

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