Vaccination and Covid-19
Under what Authority can NRC Impose this policy?
All NRC Collective Agreements contain an Article on Management Rights. Per this Article, NRC retains the contractual right to implement policies, even where those can have significant impacts on employee interests and which carry potential administrative consequences. No one can be physically forced to get a vaccine against their will. However, according to the limited case law available, employees must live with the consequences of refusing to get vaccinated. Additionally, NRC has an obligation to keep the workplace safe and, in the context of a global pandemic, NRC requires that employees be vaccinated.
What is considered “fully vaccinated” by the policy?
According to Appendix A of the policy, employees are considered fully vaccinated 14 days after they have received both doses of a Health Canada-authorized vaccine.
A list of approved vaccines and additional details of the definition of fully vaccinated can be found in Appendix A.
What will happen if I am only partially vaccinated by November 30th?
As per the vaccination policy, partially vaccinated employees will only be placed on leave without pay if they have not received their second dose within 10 weeks of the date of their first dose.
While you are partially vaccinated, temporary measures will be put in place including telework and mandatory rapid testing if you are required to report to the office.
Do I still need to get vaccinated if I telework only?
Employees who telework are also required to get vaccinated given that telework is not a right under the collective agreement. Unless an agreement is in place as part of the employer’s duty to accommodate, at any time, a telework agreement can be terminated and employees have to be in a position to report to work.
Do I still need to get vaccinated if I have already had COVID-19 and have natural antibodies?
Yes. The policy does not provide for an exemption as a result of a previous diagnosis of COVID-19.
The policy does provide that, for current residents of Quebec only, fully vaccinated means the employee has had a laboratory-confirmed COVID-19 infection followed by at least 1 dose of a Health Canada authorized COVID-19 vaccine. Definitions may be adjusted from time to time.
Why can I not submit to regular testing instead of getting vaccinated?
The employer implemented its policy unilaterally after providing all bargaining agents the opportunity to comment. There was no negotiation.
While the RCEA has proposed the use of rapid testing as an alternative to vaccination, the NRC did not adopt that suggestion. Rapid testing may however be available as part of medical or human rights accommodation.
Will the employer be liable if I get vaccinated and experience side effects?
The employer has not acknowledged liability should the vaccine have side effects. Employees should be aware that vaccination is a personal choice that cannot be imposed. The RCEA respects employees’ right to choose.
If an employee experiences a side effect that prevents them from working following vaccination, they can request sick leave from their manager.
What will happen if I refuse to get vaccinated or refuse to disclose my vaccination status?
The RCEA fully supports an employee’s right to decide if they receive a vaccination and to decide whether to disclose their vaccination status. No employee will be forced to get vaccinated against their will.
However, choosing not to get vaccinated or disclose your vaccination status will result in employment implications. The policy states that all federal public servants must be fully vaccinated by November 30, 2021 and that those who are unvaccinated without a valid exemption will be placed on leave without pay for administrative purposes as early as December 15, 2021.
Attestation and Exemptions
What are valid human rights-based exemptions for vaccination?
If you have a medical or religious reason not to be vaccinated, you can apply to the NRC for a human rights-based exemption to the vaccination requirement by requesting an exemption on your attestation form. Without supporting documentation, a request for accommodation is likely to be denied and a challenge of the decision would likely be unsuccessful.
An employee requesting a medical accommodation will need to provide written documentation from their treating physician or nurse practitioner with the reason for not receiving or for delaying the COVID-19 vaccine. The note will need to specify whether the reason is permanent or temporary, and if temporary, identify the expected duration.
For religious exemptions, the employer must be satisfied that the employee holds a sincere religious belief that prevents them from being fully vaccinated. The requirement focuses on the sincerity of the individual belief rooted in religion, not whether it is recognized by other members of the same religion. The belief must be religious in nature (not a personal, moral belief) and the employee must explain the nature of the belief and why it prevents vaccination. Personal beliefs are not a prohibited ground for discrimination under the Canadian Human Rights Act or any other legislation The manager can request more information if the explanation provided is not sufficient.
For both exemptions, if they are granted, measures will be put in place including telework and mandatory rapid testing if you are required to report to the office.
What recourse do I have if my exemption request is denied?
If you apply for an exemption and are denied, please contact email@example.com. We will assess whether the employer has followed the policy and your collective agreement. We will advise you of your rights and represent you if warranted.
How do I show proof of vaccination?
The employer requires an attestation (written statement of the employee) of vaccination from every employee, which can be completed in the National Research Council Vaccine Attestation Tracking System (NRC-VATS). Your attestation must be submitted by November 30, 2021.
Can the employer ask me for proof of vaccination even after completing an attestation?
Yes. Similar to requesting sick notes, the employer has the right to request proof of vaccination at any time, such as a vaccine passport or receipt, and has indicated they plan on auditing attestations.
What will happen if I misrepresent my vaccination status on my attestation and cannot produce proof?
Intentionally lying on your attestation of vaccination would be grounds for disciplinary action. The employer would likely consider either suspension or termination for an intentional fraud.
I am currently on leave. How long will I have to complete the attestation once I return?
Employees currently on leave such as maternity leave or leave without pay will have two weeks to complete their attestation upon their return from leave if their return falls after November 17, 2021.
If you have not received your first dose within two weeks of your attestation deadline (four weeks after your return to work), you will be placed on administrative leave without pay unless you have received an exemption.
Leave Without Pay
If I am unwilling to get vaccinated, how long will I be placed on leave without pay?
At this point in time, your leave without pay would be indefinite, since many hard-to-predict factors may affect the length and severity of the pandemic.
However, the vaccination policy is currently set to be reviewed every six months. We will also be monitoring the course of the pandemic, and when vaccination is no longer needed according to public health authorities, we will call for the policy to be rescinded.
Will my pension and health care premiums be paid out while I am on leave without pay?
Pension and health care contributions from the employer stop after three months of leave without pay. In the event an employee remains on authorized leave without pay for more than three months, the employee is responsible for both the employee and the employer share of contributions for themselves and their eligible dependents.
Will I be eligible for employment insurance while I am on leave without pay?
No, an employee cannot receive EI payments when on leave without pay as Employment and Social Development Canada’s eligibility requirements consider it to the be the same as “if you voluntarily left your job without just cause”.
Can I file a grievance for being put on leave without pay?
The NRC’s position is that this is administrative leave without pay and therefore not disciplinary, so you will not have the ability to grieve. Administrative leave is sometimes used in circumstances where an employee lacks the capacity to work. In this case the employer has determined that unvaccinated persons pose an unacceptable health and safety risk to the workplace.
Is having to disclose my medical or religious information a violation of my personal privacy?
Your personal information is yours to disclose or not disclose. However, your choice not to disclose personal information has an impact on your employment rights.
We have reviewed the privacy protections in place as part of this policy and they are compliant with privacy laws.
Can the NRC terminate me for refusing to get vaccinated?
The current Policy on Vaccination does not consider termination of employment, but places employees on an administrative leave without pay, there is no specific end date to leave without pay. The policy will be reviewed every six months.
Can I request another form of leave to avoid being placed on leave without pay, such as vacation leave or sick leave?
We have asked for clarification of the employer’s position on eligibility for other forms of leave and were told that leave would be granted pursuant to our collective agreements. We suggest that you review the leave provisions in your collective agreements.
Will RCEA represent me if I choose not be vaccinated?
If you have applied for accommodation based on medical grounds or on a protected ground under the Canadian Human Rights Act and accommodation has been refused, the RCEA will review your case and determine whether a successful challenge can be brought forward. If your decision to not be vaccinated is based on other reasons, the RCEA will not be able to represent you. We strongly encourage members to get vaccinated. Vaccination is a key public health tool to keep you, your community, and your colleagues safe.
In terms of challenging the requirement to be vaccinated itself, the RCEA will not be doing this as we are of the view that NRC is within their rights to implement such a policy.
What if I have a question about the vaccine policy that has not been answered here?