Statement and Legal Opinion to CUPE 4070 Re: Mandatory COVID-19 Vaccination Requirements
Dear Members,
We know that the WestJet Group’s recent communication regarding mandatory vaccinations, in response to the impending mandate from the federal government, has raised many questions within the Membership.
Your elected CUPE Local 4070 Executive has been in near continuous contact; and have been in contact daily with our CUPE National legal counsel on the issue of our Employer’s mandated vaccination for all staff. The Local has received countless e-mails from Members both expressing sincere belief that this violates their individual rights; as well as Members communicating their fear of working with individuals who refuse to be vaccinated against COVID-19.
As your Union Executive, we understand that this is a deeply polarizing issue for the Membership. As the Union, our responsibility to our Members is to represent your rights within the scope of the employment relationship with your Employer. We understand what that means is not always clear to Members. Additionally, a great deal of information is being circulated interpersonally and via social media within our Membership, and beyond; including other labour unions within the WestJet Group. Many opinions being offered claim to offer free legal advice about your rights in the workplace; or alternatively offer sources which are highly questionable from a legal standpoint under Canadian law.
Your Union’s job is to protect all of our Members’ employment relationship with their Employer; irrespective of politically divisive circumstances.
In the interest of ensuring the Union is clear on what our legal scope is with respect to mandatory vaccination mandates and the law, we have asked our CUPE National legal counsel to review the communication(s) released by the WestJet Group last week, which explain the Employers’ vaccine requirements in detail. Your Union also asked our National legal counsel to write a formal legal opinion based on the facts therein. We are attaching CUPE 4070’s Counsel’s official legal opinion today for your reference.
A legal opinion is based on legal analysis of leading case law in Canada. In looking at the facts of this case, it’s mitigating factors and circumstances, as well as if there are any possible arguments against the Union’s position; and if so, what is an arbitrator likely to decide. These are the heavy questions that your Local 4070 Executive must decide upon, based on all evidence before us. Those questions and answers make up the core of a legal opinion, and are determined by looking at decisions made by arbitrators in the past, in hearings with similar facts, mitigating factors and circumstances.
CUPE National Legal Opinion and Vaccination Q&A Documents:
CUPE National Legal Opinion presented to CUPE Local 4070
CUPE National Question & Answers for the Airline Sector
(Airline Division of CUPE)
CLICK HERE
The Union encourages all Members who wish to learn more to read the attached legal opinion. Below, we will summarize the key points that can be taken from it.
WestJet’s policy contemplates discipline up to and including termination for those Members who wish to refrain from being vaccinated. While there may be questions around whether the Union could successfully challenge such a termination, we do not have any legal avenue to proactively prevent the employer from imposing such a policy. What this tells us is that the best, and in fact, the only guaranteed way to prevent loss of earnings, termination, or other negative consequences, is to be vaccinated if you can be.
Let us be clear: this is not a political position. As the Union, we cannot provide you direction while knowing that the consequences of that direction may result in discipline or termination for you. Doing so would be contrary to the Union’s obligation to represent you in your employment relationship. The Union cannot control the Government mandate or its legislation or policies. Similarly, we cannot challenge the existence of a vaccine policy where federal legislation requires that the employer has one.
2. It is legal for the employer to announce and implement such a policy. Whether a legal challenge to a termination as a result of refusal to vaccinate would be successful is unknown. This legal challenge would depend on a multitude of factors beyond the Union, the Company, the Government, or any individual’s control - it would have to be tested after the fact under the Canada Labour Code (CLC).
The legal opinion attached describes this in detail. If you are terminated as a result of not being vaccinated, the Union is likely to challenge the termination via a grievance. There is no guarantee of success however; or that the Union would refer grievance(s) to arbitration if new decisions under the CLC render the chances of success obsolete. Even if your grievance goes to arbitration, it is far from guaranteed that an arbitrator will uphold the grievance. It is highly uncertain how arbitrators will handle terminations arising from breaches of mandatory COVID vaccination policies. If your grievance is successful at arbitration and you are reinstated, you may still not receive back pay and you may not be allowed to attend work until you are vaccinated. This is the practical reality upon which we live, work and operate.
Of further note: this may not extend to any and all actions related to vaccine refusal. As an example: lying on your declaration or falsifying vaccine records, and being disciplined or terminated for this, are not the same as being terminated for not being vaccinated.
3. There may be grounds for accommodation as a result of protected grounds such as medical accommodation (some people cannot be vaccinated due to verifiable medical reasons), or religious grounds. That being said, a strong personal opposition to a vaccine, in the absence of falling within these protected grounds, will likely be found to not trigger the WestJet Group’s duty to accommodate. Please review the above linked documents from CUPE National for more details on such possibilities.
If you believe that you fall into one of the above groups, and would require accommodation as a result of objectively verifiable protected grounds, we urge you to reach out to the Union at the earliest opportunity. CUPE Local 4070 is committed to challenging disciplinary action issued by the WestJet Group, particularly as it concerns Members who require accommodation. If there is discipline base on legally protected grounds, the union will support you through the process, however we cannot guarantee any particular outcome.
Other notable points arising from the opinion are:
It is likely reasonable, in light of global pandemic circumstances, for the Employer to require Members to disclose their vaccination status.
The Employer can require that full vaccination be a condition of employment for new-hire employees.
COVID-19 is likely to be found to constitute compelling exceptional circumstances, and it is likely an Arbitrator would find that the Health and Safety benefits of mandating a vaccine to outweigh the invasiveness of that vaccine.
Your CUPE Local 4070 Executive is aware that this is a polarizing and complex issue. We encourage all our Members to read the document, and both of the attachments.
If you still have questions about your rights as it relates to the vaccine, please don’t hesitate to reach out to the Union in a respectful and constructive format: cupe4070.ca/contact
In Solidarity,
Your CUPE 4070 Executive Team