7.19. COVID-19 Pandemic Mandates in the Workplace

 

Introduction

Many of the witnesses described how their employers, including both government and private industry employers, mandated certain “public health measures“ during the pandemic.

These measures included such things as:

• Mandated vaccines

• Face masks

• Social distancing

• Work from home

A number of these industries may have been regulated by the federal government, such as railways or airlines, but many businesses were not.

The Canadian government mandated COVID-19 vaccines for all federally regulated employees and travellers on October 30, 2021.

https://www.canada.ca/en/treasury-board-secretariat/news/2021/10/backgrounder-Covid-19-vaccine-requirement-for-the-federal-workforce.html

A list of the departments and industries affected can be found in schedules I and IV. See links below:

Schedule I

Schedule IV

According to the Government of Canada, this order included approximately 267,000 employees.

Provincial and territorial governments also enacted similar requirements for their employees. The timelines for implementation varied by jurisdiction, as did the scope of the mandates.

Within the provincial and territorial jurisdictions there was a mixture of requirements ranging from mandatory vaccinations to required COVID-19 testing.

Witness statements indicated that many employers, both public and private, enacted face masking, social distancing, and work-from-home programs as early as March of 2020. Compulsory COVID-19 genetic vaccine requirements were generally put in place in the fall of 2021, and they were maintained for approximately one year.

Testimony Concerning COVID-19 Mandates in the Workplace

Private companies unilaterally imposed mandates on workers outside of their existing labour contracts, based on a wholesale adoption of the Government of Canada‘s or Provincial or Territorial health directives.

Most workers complied with the face masking, social distancing, and work-from-home programs.

Witness testimony primarily focused on those workers who refused to comply with the mandatory vaccine regulations.

Testimony indicated that when a worker refused to take the mandated vaccines, they were dismissed either for cause or for, in many instances, insubordination. Many were put on extended indefinite leave without pay, and were thus denied the ability to receive employment insurance benefits.

Being placed on leave without pay for non-compliance with a unilaterally imposed change in employment conditions is normally considered “constructive dismissal.“ It is unclear how the actions of these employers has not been defined as constructive dismissal.

On the Government of Canada website, the definition of constructive dismissal is provided.

https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/constructive-dismissal.html

According to the Government of Canada:

The phrase “constructive dismissal“ describes situations where the employer has not directly fired the employee. Rather the employer has failed to comply with the contract of employment in a major respect, unilaterally changed the terms of employment, or expressed a settled intention to do either, thus forcing the employee to quit. Constructive dismissal is sometimes called “disguised dismissal“ or “quitting with cause“ because it often occurs in situations where the employee is offered the alternative of leaving or of submitting to a unilateral and substantial alteration of a fundamental term or condition of his/her employment. Whether or not there has been a constructive dismissal is based on an objective view of the employer‘s conduct and not merely on the employee‘s perception of the situation.

It is the employer‘s failure to meet its contractual obligations that distinguishes a constructive dismissal from an ordinary resignation. The seriousness of the employer‘s failure as well as the amount of deliberation apparent in its actions are also important factors.

The employer‘s action must be unilateral, which means that it must have been done without the consent of the employee. If it is not unilateral, the variation is not a constructive dismissal but merely an agreed change to the contract of employment. Generally, if the employee clearly indicates non-acceptance of the new conditions of employment to the employer, there has been a constructive dismissal only if the employee leaves within a reasonable (usually short) period of time. By not resigning, the employee indicates his/her acceptance of the new conditions of employment.

Many witnesses described how they asked their labour unions to intercede on their behalf and that the unions would not take up the cases of their union members who were laid off, fired, or constructively dismissed.

Unionized workers had no access to individual review by human rights agencies due to their pre-existing union agreements.

Witnesses described how they attempted to get exemptions to the mandates, based on medical or religious beliefs, and that in most instances their requests were denied.

Many of the witnesses who testified before the Commission were unsuccessful in actions against their employers based on constructive dismissal. Although the definition noted above is from the federal government and is based on the provisions of the Canada Labour Code, similar such provisions exist in the provinces and territories throughout Canada.

Workers who had legitimate concerns about the COVID-19 genetic vaccines were faced with a limited set of devastating choices, if they were to stand true to their own convictions. These choices included being terminated, early retirement, forced retirement, or voluntary resignation.

Scarlett Martyn

Impact of Vaccine Mandates

Scarlett Martyn was an advanced care paramedic with special training in disaster response (Heavy Urban Disaster Team). She was first suspended and then terminated for “willful misconduct and jeopardizing workplace health and safety,“ after 24 years of service. This was based on her refusal to be vaccinated for COVID-19. She had evidence that confirmed she had natural immunity to COVID-19 and did not require an injection.

Ms. Martyn described a toxic work environment within the health service after the vaccines became available. This toxic environment extended to health care workers within the system and toward patients who were seeking service.

The impact of the vaccine mandates on the readiness and capacity of the Canadian Armed Forces was discussed by Catherine Christensen during her testimony.

Catherine Christensen

Canadian Military Decimated

Ms. Christensen testified that the Canadian Armed Forces lost an estimated 3000 to 5000 personnel due to the mandatory vaccination policy, out of a regular force of 68,000. This was the highest loss of personnel since World War II.

Ms. Christensen stated that the cost to the Canadian Armed Forces exceeded $3 billion in loss of training, experience, and expertise. This did not include costs to the members.

She further discussed the toxic environment that was promoted and created within the Canadian Armed Forces against the unvaccinated, which she claimed continued.

Laurier Mantil

Balancing Pregnancy and Safety

When her employer instituted a vaccine mandate in the fall of 2021, she was pregnant, so she did not want to get the vaccine. She applied for an exemption on the basis of human rights. She did not get laid off for non-compliance, as prior to the employer-ruling, she went on maternity leave. Her other co-workers who did not comply were terminated.

Camille Mitchell

Pharmacist Camille Mitchell‘s Testimony on Vaccine Mandates in Healthcare

Based on her 26-year experience as a pharmacist, she had decided she did not want to take the vaccine. At the time of the vaccine mandates, she was working in the hospital pharmacy. Due to her refusal to get vaccinated, she was terminated from her hospital position, which she held for nine years. Prior to being terminated, she applied for an exemption under a declaration of faith. The employer did not acknowledge the declaration of faith.

Although she found new employment at a community pharmacy, she had to re-certify to administer injections, and she believed testifying before the Commission put her employment at risk under Bill 36.

Zoran Boskovic

Lost Job Due to Vaccine Mandates

He was working for the provincial government as a forester at the time of the COVID-19 vaccine mandates. He had been infected with and recovered from COVID-19 in the summer of 2021. His employer brought in a mandatory COVID-19 vaccine policy in the fall of 2021. Both he and his wife applied for a medical exemption due to previous infection and natural immunity. His application was denied.

He was put on three months leave without pay, and then he was terminated. He was terminated by the province on the same day that the federal government removed their vaccine mandate for federal workers.

He was denied employment insurance benefits. He took early retirement after being terminated, and his pension benefits are at a reduced rate.

Dr. Ben Sutherland

Lost his Position at Fisheries and Oceans Due to Non-Compliance with Vaccine Mandates

Dr. Sutherland was a research scientist at the department of Fisheries and Oceans. During much of the pandemic, he was working from home. He had a medical condition and asked if the vaccines had been tested on people with his condition. It had not been tested. He tried to get an exemption from the vaccine mandate from his doctor, based on his pre-existing condition, but was denied.

He tried to get support from his union, but the union would not support him.

He was terminated on November 15, 2021. There were some issues surrounding the termination; the employer told him he was suspended without pay, but on his record of employment was code M. He was able to get employment insurance.

According the Government of Canada website:

Code M—Dismissal or suspension

Use Code M when the employer initiates the separation from employment for any reason other than layoff or mandatory retirement (that is, the employee is leaving the workplace because he or she has been dismissed by the employer). Also use this code when the employee is suspended from their employment.

James Jones

Vaccine Mandates, Workplace Bullying and Wife Suicide

Mr. Jones‘ wife was subject to a vaccine mandate at BC Transit. The mandate was not imposed by government regulation, but a vaccine mandate was adopted by company management. His wife did not want to take the vaccine because they were wanting to get pregnant. Mr. Jones and his wife had done research on potential side effects due to the vaccines and had serious concerns.

They attempted to apply for an exemption to the mandatory vaccine, based on their concerns with safety. His wife was bullied and coerced from all sides at her work, including from her union, which would not support her.

Eleven days after being terminated from BC Transit for not complying with the vaccine mandate, she took her own life.

Philip Davidson

BC Public Service Employee Testimony on Job Loss Due to Vaccine Mandate

Philip Davidson worked for 14 years in the BC Public Service, in various policy positions. Once the pandemic was declared, many of the staff in their office worked from home.

In the summer of 2021, there was a lot of talk in the office about requiring vaccine passports (BC Vaccine Card). This was implemented on September 13, 2021.

The BC provincial government implemented a requirement for all persons to be vaccinated to enter the BC Legislature.

Mr. Davidson had serious concerns about having to disclose his private health and vaccine status. He said the BC ministry‘s communicable disease prevention plan (October 4, 2021) stated that the ministry could not inquire as to vaccine status. Despite this, the BC Public Service issued a policy that required disclosure of vaccine status.

He refused to disclose his vaccination status and was terminated for cause.

Employees who were terminated started a support group, in order to advocate on behalf of the employees. He estimated approximately 2000 to 3000 people were either terminated or took early retirement due to the vaccine mandate.

Darcy Harsch

Job Loss and Medical History Testimony on Vaccine Hesitancy and Employment

At the time of the pandemic, Darcy Harsch was working with adults with disabilities. Prior to the pandemic, he had a stroke and was disabled. As a result, he did not want to take an experimental vaccine.

He observed vaccine side effects in his co-workers, which contributed to his concern.

His workplace required him to reveal vaccine status, and he refused, so he was put on unpaid leave for approximately one year. His employer told him that he was not eligible for employment insurance, so he did not apply for employment insurance until the fall of 2022.

Suzanne Brauti

Job Loss Due to Denied Religious Exemption Request

She was working for the Government of Canada, in 2019. When the pandemic occurred, she was still in training. Due to the pandemic, she completed her training at home, and then worked at home for approximately one year.

The federal government implemented a vaccine mandate in the fall of 2021. She submitted a request for an accommodation due to religious beliefs. She had filed all the information requested but was denied her accommodation and was put on leave without pay.

She sent in a freedom-of-information request concerning how the government decided to deny her request. She felt that the information showed that she was not fairly assessed and filed a human rights complaint.

She has not been supported by her union.

Grace Neustaedter

Early Retirement: A Nurse‘s Testimony on Vaccine Pressure in the Workplace

Grace Neustaedter worked as a nurse for 41 years and has a master‘s degree in nursing, working as a specialist in the area of women‘s health.

Based on her experience as a nurse, she had serious concerns with regard to the speed that the vaccines were being developed, and she had done significant research into the vaccine‘s safety. She tried to have discussions concerning the vaccine safety, but co-workers were extremely close-minded. In fact, staff were vocally criticizing unvaccinated patients in public.

When vaccine mandates were imposed, she applied for a religious exemption, and there was no response.

She spoke to her union and was told that only one religious exemption had been allowed.

Some staff were allowed to continue to work from home, but she was not.

She went on stress leave and then medical leave, and finally she took early retirement.

In addition to employment issues, she and her husband were shunned by friends, family, and her family doctor.

She testified that she did not know anyone who had died from COVID-19 but that she knew several people who died from the vaccine.

Sierra Rotchford

A Paramedic‘s Account of Emergency Calls and Mandate-Impact on Ambulance Services

Sierra Rotchford primarily discussed the overall impact of mandates on the ambulance service. She indicated that 35–40 ambulances were taken out of service due to staffing losses. Staff were absent due to termination, stress leave, and illness.

She had sepsis and tried to obtain an exemption from getting the COVID-19 injection but was denied.

She observed a great deal of bullying between colleagues and between medical staff and patients.

She reported that the greatest increase in ambulance calls occurred following the vaccination program.

Vonnie Allen

Emotional Testimony from Veteran Nurse Once a Hero, Now Shamed and Muzzled

After 34 years working as a nurse on the maternity unit, Vonnie Allen was terminated after refusing to comply with the vaccine mandates.

Ms. Allen was denied service, restricted from speaking, and was not allowed to attend when her daughter was hospitalized.

Cathy Careen

Teacher Terminated from her Job

At the time when the pandemic was announced, she was working full-time as a teaching and learning assistant (TLA).

In 2006, she was diagnosed with Guillain-Barré syndrome. As a result, she did not want to take the COVID-19 genetic vaccine, as it had not been tested on patients suffering with her condition.

When the vaccine mandates were announced, she refused to take the vaccine due to her pre-existing condition. Her neurologist wrote a letter saying she should not take the vaccine.

Her request for exemption was denied. She appealed to the union, but they did not support her.

She was denied employment insurance benefits.

International Human Rights Law

Gail Davidson

Canada‘s Obligations Under International Human Rights Law

Ms. Davidson was a retired lawyer who had worked 20 years as an expert in international human rights law.

Canada had obligations under international human rights law. Many of these laws were violated by the mandates imposed in Canada during the declaration of the COVID-19 pandemic.

Right to Informed Consent was violated.

Certain international laws to which Canada was a signatory cannot be suspended, but they were suspended.

Her opinion was that the restrictions of rights of employees were in violation of international human rights laws.

Conclusions

A variety of COVID-19 mandates were unilaterally imposed on workers in all levels of government and in a variety of private industries across Canada.

Generally speaking, most non-pharmaceutical measures imposed at the workplace were complied with by employees; however, the imposition of compulsory vaccine mandates was resisted by many workers.

Resistance to mandatory vaccines resulted in a significant loss of qualified workers in all industry sectors. The loss of workers was due to suspensions, dismissals, forced retirements, voluntary early retirements, or worker resignations.

Many workers who were suspended, terminated, or dismissed were deprived of any assistance from the employment insurance plan due to the way their dismissals were coded.

Testimony received, indicated that the imposition of a mandatory vaccine was in direct contradiction to the principle of Informed Consent, which is a cornerstone of modern medicine.

Very few exemptions were provided to employees who had medical conditions, religious objections, or were concerned with taking an experimental gene therapy.

Despite the viable option of working from home, many employees were denied this option.

Shortages of staff resulted in reduced patient care due to the mandates implemented in the medical field.

Unions did not support the objections of their members to mandatory vaccines, and due to the union agreements, these workers were denied the right to appeal their layoff decisions.

The imposition of mandatory vaccines, in addition to the breach of medical privacy, resulted in toxic work environments which extended not only to staff working in facilities but also to the public accessing these services.

The mandates violated international human rights laws, to which Canada was a signatory. Rights to health include:

• Informed Consent,

• Freedom from Coercion, and

• Freedom from Experimentation.

The mandates that were imposed on Canadians violated many of the existing protected rights that are granted and recognized by both Canadian law and international laws and agreements, to which Canada has obligations.

In addition, Canada has certain obligations under international law, and there are certain rights that can be limited, under certain conditions, and there are other right that are absolute, which cannot be restricted.

Testimony of the witnesses provided examples of government actions which violated certain rights which were absolute rights, and therefore, the actions of the government were not in accordance with Canada‘s obligations under international law.

The Commissioners heard evidence that under international law, absolute rights cannot be violated, even under emergency situations.

Examples of absolute rights include:

International Treaty Rights

These include the right to: life; freedom of belief, conscience and religion; freedom from coercion to adopt a belief other than by choice; freedom from torture and ill treatment, the right to freedom from experimentation; freedom from ex post facto laws; and effective remedies for violations.

Jurisprudence Rights

These include the right to education, work, health, Informed Consent, and freedom from coercion.

The actions taken by the government were not in accordance with international laws and treaties to which Canada was a signatory.

Generally speaking, the laws that set out the legal limitation of the government‘s actions in Canada were well established and should have been sufficient to prevent the imposition of mandates on unwilling people through threats or coercion.

The violation of essential human rights came about from the wilful violation of those laws by both state and private actors.

A further issue in Canada is the financial reality of enforcing citizens‘ rights against government entities or large corporate entities. Governments or large corporate entities have virtually unlimited financial resources and can simply exhaust the financial resources of most private citizens.

Add to this the doctrines of “judicial notice“ or “mootness.“ These doctrines effectively eliminate the right of citizens to their day in court. Canada is required to uphold the principle of the rule of law, which is necessary to protect the rights of citizens.

The rule of law requires that laws be properly purposed, properly passed, equally applied to all, and that there be measures in place to ensure equality, accountability, and access to all citizens. This is sadly not the case in Canada.

Recommendations

We recommend the following:

1. Immediate development of a judicial panel, overseen by citizens, with the responsibility to investigate the human rights violations that were committed by both governments and private corporations during the pandemic.

2. Develop and implement a constitutional and international law education course for all judiciary positions across Canada. The intent is to educate judges and Crown attorneys as to their responsibilities under the constitution and international treaties to which Canada is a signatory nation.

3. Carry out immediate judicial reviews of all pandemic-related court cases that were denied on the basis of mootness or judicial notice.