To our UFCW Local 401 health care heroes:
Hello, my name is Thomas Hesse. I’m the President of your union, UFCW Local 401.
We represent many employees like you in the health care sector and have been watching the emergence of COVID-19 in Alberta and the vaccines that have been deployed to fight the virus. I felt it was important to apprise you of your rights based on the research we have done on the vaccine and consultations with our legal counsel.
Like all Albertans, we are feeling the stress and anxiety of these times. Personally, I can understand why members would be hesitant to get a vaccine that was seemingly developed hastily. On the other hand, I am deeply concerned about your health and safety, and strongly believe a safe vaccine should be made available to you as soon as possible. Ultimately, the decision to get vaccinated is a personal one, but we want to make sure you understand your rights, so you can make an informed decision.
As you know the roll-out of COVID-19 vaccines has begun across the province with two vaccines, one developed by Pfizer/BioNTech and the other by Moderna. We all desperately want to get back to our normal lives, and to be able to go to work knowing we and our families are protected from this virus. But we won’t get back to normal until a significant amount of the population has become immune to the virus.
The Alberta government has prioritized getting the vaccine to health care workers in long-term care and designated supportive living facilities first. They are in Phase 1 and Phase 1a of the vaccination program, which began in December and is expected to conclude at the end of this month. Our understanding is that Phase 1 and 1a will likely include your place of employment and means you should soon be offered a vaccination if you have not been offered one already.
Some of you may feel conflicted about being put at the front of the line. Please do not feel guilty about that. Your place of employment has many residents at high risk of serious, even fatal outcomes if they contract COVID-19 and immunization is essential to stopping the spread of COVID-19 and saving lives, including those of health care workers. On Tuesday, Prime Minister Trudeau announced that 500,000 doses of vaccine had been delivered to the provinces and another million doses will be delivered by the end of January. Everyone will be able to access the vaccine soon enough.
Some of you may feel apprehensive about getting the vaccine. Public opinion polls tell us that the most common fear about the vaccines include the speed with which they were developed and approved, and the fear of side effects. As of Tuesday, January 5 statistics from the University of Oxford showed that 13.39 million doses of COVID-19 vaccine have been distributed world-wide, more than half of those being the Pfizer/BioNTech vaccine. The Moderna vaccine has been widely rolled out in the United States (where 4.56 million total vaccine doses of either the Moderna or Phizer/BionNTech vaccine have been administered) and has since been approved by Health Canada and distributed across Canada. You can monitor the progress of vaccination world-wide at the University of Oxford website: https://ourworldindata.org/covid-vaccinations.
Clinical trials of the Phizer/BioNTech vaccine showed mild side effects after the second dose including fatigue (4% of trial participants) and headache (2%) and no serious side effects. U.S. FDA-reviewed clinical trials of the Moderna vaccine reported mild or moderate side effects were commonly experienced and included pain and swelling near the injection site, headache, muscle and joint paint, fatigue, and nausea; headache (63%) and fatigue (68.5%) were the most common of the symptoms, typically lasting one or two days. The Moderna study concluded that no serious adverse events were caused by the vaccine.
People with a history of serious allergic reactions should review the ingredients for both vaccines. Neither has been reported to cause allergic reaction at a rate higher than any other vaccination – which is typically 1 to 10 cases for every 1 million doses.
You can visit the Health Canada webpage for more information about the vaccines, including their ingredients, and their safety: https://www.canada.ca/en/health-canada/services/drugs-health-products/covid19-industry/drugs-vaccines-treatments/vaccines.html.
This is an important question in your decision about vaccination, and one that we have discussed with our legal counsel.
Put simply, the law says that no one can force you to submit to a medical treatment that you don’t agree with, but a number of Alberta labour law decisions strongly suggest a health care employer can make vaccination a mandatory condition of employment. In other words, you don’t have to take the vaccine, but the employer is likely free to put a policy in place that says you can’t come to work if you refuse a vaccine.
We have not been made aware of whether or not your employer has such policy but we would not be surprised if they have developed one, so you should be aware of your rights and the potential consequences of refusing a vaccine if your employer says it is required for work.
In a 2002 case between the United Nurses of Alberta union and what is now AHS, the union challenged a policy that required all nurses to be vaccinated in order to work during a flu outbreak. Nurses who refused a vaccine were placed on an unpaid leave of absence. Nurses who were able to provide medical evidence of an allergy to one of the vaccine ingredients were put on paid leave. The union argued that the policy wasn’t discussed with the union, violated the collective agreement and the nurses’ Charter right to bodily integrity.
Arbitrator Jolliffe disagreed with the union. He concluded:
On the whole, a balancing of interest approach strongly favours the Employer in the circumstances presented in evidence […] The right to refuse [vaccination] continues. The immunization policy cannot be viewed as somehow imposing a new condition of employment. One must also have due regard to the requirement which has often been pointed out by arbitrators that a unilaterally promulgated rule cannot be inconsistent with any terms of the collective agreement. The board does not find that the policy under review in the instant case is inconsistent with [the collective agreement]. In our view, it passes muster […]
On the evidence presented, and having reviewed what we accept to be relevant caselaw and collective agreement provisions, we conclude that the Union has not established that the policy is unreasonable or inconsistent with the collective agreement or in some way violates the employee’s rights to refuse medical treatment. We must respectfully dismiss the grievance and declare the policy to be operative as developed, communicated to employees, and understood to be consistently applied.
This decision is specific to circumstances of the flu vaccination policy and collective agreement at that time, but it also considered many other decisions dealing with mandatory staff vaccination programs from across Alberta and Canada that came to essentially the same result.
Another United Nurses case from October of this year also upheld an AHS requirement that nurses must provide proof of an approved measles vaccination in order to attend work:
We also […] find that, generally, it is within AHS’ management rights to restrict an employee from work when they have been exposed to measles and cannot establish immunity. Further, in such circumstances, the failure to pay the affected employee for missed shifts is not a breach of the Collective Agreement as the employee is not fit to work during the period of work restriction. This aspect of the Policy is not punitive or unreasonable.
Based on these cases it is highly likely that an arbitrator will uphold a similar mandatory COVID-19 vaccination program for health care workers, considering how contagious COVID-19 is, the current evidence of the effectiveness and safety of the approved vaccines, and the demonstrated risk of serious consequences from a COVID-19 infection in a health care setting.
However, that doesn’t mean all employers will create a reasonable policy that doesn’t violate the collective agreement. If you are unsure about your rights in the workplace, or how an employer’s vaccine policy affects you, contact your Union Labour Relations Officer immediately for guidance.
As I said at the beginning of the letter, I can empathize with those of you who have concerns about getting vaccinated, and at the same time, I want you to have the opportunity to take advantage of a safe vaccine at the earliest possible moment so you can get back some semblance of a safe and normal life. I hope that the information we have provided you will help you make an informed decision about vaccination that you can feel confident in.
President, UFCW Local 401
Posted on: January 07,2021