7.5.12 Public Workplaces and Pandemic Measures

Introduction

Canadian Blood Services (CBS) is a not-for-profit, charitable organization that operates independently from government. Created through a memorandum of understanding between the federal, provincial, and territorial governments, CBS was established in 1998. Funding comes primarily from the provincial and territorial governments.

CBS identifies the organization as one part of Canada‘s broader network of healthcare systems. It is the only national manufacturer of biological products funded by Canada‘s provincial and territorial governments. CBS provides blood and plasma, as well as transfusion and stem cell registry services, on behalf of all provincial and territorial governments (excluding Québec). CBS national transplant registry for interprovincial organ sharing and related programs extends to all provinces and territories. CBS works closely with Hema-Québec in times of need.

CBS is responsible for the safety, quality, identity, purity, potency, and accessibility requirements of all blood products and services offered.

From its website, CBS is “committed to reflecting Canada‘s population in our organization and fostering an environment where all employees can be their authentic selves, with equal opportunities to succeed and contribute.“

In relation to COVID-19, CBS in June 2020 formed a research partnership with the COVID-19 Immunity Task Force (CITF), a research arm of the Public Health Agency of Canada. Since then, more than 720,000 blood samples have been analyzed and tested under CBS‘ seroprevalence study to determine whether donors have developed an immune system response to COVID-19 through infection or vaccination. CBS reports the results indicate that more than 78 per cent of blood donors have antibodies due to COVID-19 [infection] and 100 per cent have antibodies as the result of vaccination. CBS attributes these results to the high uptake of vaccination as well as the extent to which COVID-19/SARS-CoV-2 has spread throughout the population of adult blood donors.

Witness Testimony

Jessica Kraft (Day 3, Winnipeg, MB) is a 31-year-old with two daughters. She began her employment journey with Canadian Blood Services in October 2013. Ms. Kraft received six weeks of classroom and on-the-job training. She enjoyed her role as a Donor Care associate. Ms. Kraft‘s clinical responsibilities included needle insertion (phlebotomy) and donor screening procedures.

In December 2019, Ms. Kraft gave birth to a second daughter. Consequently, she went on maternity leave. She returned to work in March 2021 following the implementation of workplace safety protocols for COVID-19. Mandates included the wearing of masks by staff and donors, social distancing protocols, the introduction of wellness checkpoints within the clinic, and ensuring donors were in good health before they came into the facility.

When she first started with Canadian Blood Services, she found the environment to be a fun and a supportive place to work. Her colleagues formed a good team. She noted that while she was on parental leave, there was a change in management. This in turn led to a push for more first-time donors. Other notable clinic changes included the exclusion of family and friends attending the clinic to support donors and the lack of refreshments for donors after donating whole blood, plasma, or red blood cells (which is critically important to ensuring the donor‘s health). On a broader level, Ms. Kraft noted a change in how CBS portrayed itself as an institution—from a non-profit contributing to the of health needs of Canadian patients to being labelled a biologics manufacturing company.

As well, Ms. Kraft observed the clinic had become rigid and sterile. There was an increase in donor reactions (donors feeling faint and/or passing out). However, during this time, there were no specific changes in her job description or the way she collected blood.

In September 2021, Canadian Blood Services posted a mandatory vaccine notice to employees. Under the new mandate, requirements included attesting one‘s vaccination status to the employer and submitting to regular rapid tests. Employees were required to be fully vaccinated by late fall. There was an option for applying for medical or religious exemption. Ms. Kraft pursued an exemption.

When she went to see her physician for a regular checkup, she mentioned the new healthcare worker mandate. The doctor dodged Ms. Kraft‘s questions about getting an exemption for her condition. Ms. Kraft has a pre-existing medical condition known as functioning heart murmur. Her doctor denied her heart condition, a diagnosis she has had for her whole life. Ms. Kraft‘s medical doctor would not give her an exemption for two reasons. First, the exemption would have to be cleared by other physicians and second, even if she did provide a medical exemption, it would likely not be approved by Ms. Kraft’s employer.

She then tried to get permission for exemption from Canadian Blood Services. She approached her immediate supervisor, managers, and the CBS doctors on-site with questions. In response, she received a lot of copy-and-paste-type statements and impersonal email replies. At work, she was asked publicly if she planned to get vaccinated. This same question was posed in front of donors. Feeling awkward, Ms. Kraft would change the subject.

Ms. Kraft reiterated she was not opposed to vaccines. She was up to date on all her other vaccines. Her children were vaccinated.

Ms. Kraft testified that even though she knew disciplinary action was coming, she was still devastated when it happened. What caused the decision to be so difficult? Ms. Kraft objected to disclosing personal and private health information to her employer and subsequently having to submit to regular rapid testing. She cited the Personal Health Information Act as justification for not attesting. The Act states employees are not required to disclose personal health information to employers. Regarding the testing requirement, she didn‘t think it set a good precedent in the workplace. Ms. Kraft was never previously required to prove any other vaccine compliance to her employer. At one point, CBS encouraged employees to receive a Hep-A or Hep-B vaccine, but neither of these vaccinations were mandated or enforced.

Overall, Ms. Kraft said her unvaccinated status affected her relationship with colleagues. She did not know whom she could trust. On Thanksgiving Monday, Ms. Kraft received a call from her supervisor, stating she would not be allowed back to work, primarily because she had not consented to any of the imposed measures.

Ms. Kraft filed a grievance with her union and was told she would receive an education package. This never came. She was later informed her complaint would not be going to arbitration. She was not eligible for Employment Insurance. She would not get her job back. When she went into the workplace to pick up her personal belongings, she was ostracized and treated like she was infectious. Since her termination, Ms. Kraft has sought employment on and off but is grateful to have been given this time with her children.

In response to Commissioner questions, Ms. Kraft said she was CBS trained as a phlebotomist. She had signed the CBS code of conduct. CBS had not changed the terms of her employment or job description. The union did not address her complaint. The compliance orders came from CBS Head Office. To the best of Ms. Kraft‘s knowledge, CBS was regulated by Health Canada. She said it was unfortunate to see donors dwindling. She confirmed severe reactions were documented in incident reports.

In closing remarks, Ms. Kraft said she was privileged to use her time off to be with her children but others who lost their jobs and homes were not as fortunate. She said it was for those individuals and families that she chose to speak at the NCI hearings.

Canadian Blood Services terminated her position in October 2021.

Analysis

Ms. Kraft‘s employer Canadian Blood Services (CBS) is a not-for-profit regulated by Health Canada. CBS is a publicly funded institution. CBS entered into a partnership with the Public Health Agency of Canada (via CTIF) in 2020. The CBS website currently states, “Canadian Blood Services is a COVID-19 vaccinated organization.“

Moreover, CBS is committed to the principles of diversity, equity, inclusion, and I CARE (Integrity; Collaboration; Adaptability; Respect; Excellence). CBS positions its societal contributions “as the connection between donors and patients, healthcare professionals and medical researchers.“ As well, CBS advocates for an environment where all employees can be their authentic selves, with equal opportunities to succeed and contribute.

CBS guarantees a further commitment to basic human rights, including equity, inclusivity, and diversity in the workplace. Together, these statements are particularly critical in understanding the legal obligations and duties of employers in Canada.

Yet, as we understand from the testimony, Ms. Kraft was harassed and made to feel uncomfortable by colleagues, without consequence to the perpetrators. Her workplace did not portray an inclusive environment. Diverse or dissenting viewpoints were not welcomed. Indeed, in this example, CBS did not adhere to their own commitment to provide a work environment wherein all personnel are treated with respect and dignity, permitted to be their authentic selves, with equal opportunities to succeed and contribute.

When Ms. Kraft asked legitimate health-related questions of her immediate supervisors and management team (who are required by occupational-related legislation to be adequately trained in health and safety as well as informed of their respective responsibilities), in writing, she received copy-and-paste email responses that failed to inform. Witness testimony indicates there was no one directive from CBS Senior Management that summarized the risks and benefits of the COVID-19 genetic vaccine(s) or elaborated on the guiding principles of Informed Consent. The Commission is not aware of any actions taken by CBS or the union to bring about a satisfactory resolution or accommodation for Ms. Kraft.

Similarly, Ms. Kraft‘s union failed her by not ensuring she received information that could have further educated her personal choices. Perhaps, by acting in the best interests of Ms. Kraft, the union could have protected her from termination. As if this wasn‘t enough, EI decision-makers, responsible for ensuring employees/clients who lose their job receive Employment Insurance benefits to tide them over until equivalent employment can be found, also denied her EI benefits—for misconduct.

From the witness testimony, there is no shortage of questions to pursue. For example, did CBS ever consider the extent to which unvaccinated CBS personnel posed a health risk to donors and colleagues? Did either CBS or the union conduct an exhaustive review of the scientific evidence? What were the findings? Were either CBS or the union aware that all four COVID-19 vaccination choices were still in clinical trials in the fall of 2021?

Were questions raised that, perhaps, CBS policies for vaccination amounted to coercion by the employer or that the vaccination dictate could have been inconsistent with or contrary to provisions of the collective agreement? Or possibly was contrary to the principles of Informed Consent?

Observations

1. Medical freedom, Informed Consent, the right to choose as it pertains to COVID-19 vaccinations:

Informed Consent means persons administering medical treatments or procedures must inform individuals beforehand of the benefits and risks associated with the medical treatment, interventions, or procedures. In this case, the employer CBS mandated that all employees must be vaccinated with one of the four identified Health Canada approved vaccinations and/or undergo regular rapid testing. These demands occurred during a timeframe when all four proposed vaccinations were still in clinical trials. [FDA Clinical Trial website reported vaccinations manufactured by Moderna, AstraZeneca, Pfizer, and Janssen (aka Johnson & Johnson) were still in clinical trials in October 2021.]

The witness clarified the mandates came from CBS Head Office, so in essence, the order came from senior management, who by extension, dictated that employees could not exercise their right to choose when it came to COVID-19 vaccinations. Medical freedom was not an option. Together, these contravene elements of consent which include obtaining informed and explicit consent prior to treatment. It also violates the principle that consent must be voluntary. Consent cannot be considered valid when it is given under conditions of fear or pressure, and this includes threats of disciplinary action or the possibility of losing one‘s job.

Section 265(3) of the Criminal Code of Canada defines consent in relation to assault as:

(23) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant (b) threats or fear of the application of force to the complainant or to a person other than the complainant (c) fraud, or (d) the exercise of authority.

As well, in responding effectively to Ms. Kraft‘s questions, CBS should have provided evidence proving that mandatory COVID-19 vaccinations had been fully, independently, and rigorously tested against control groups and released the subsequent outcomes of those tests, including long-term results, a list of potential adverse effects, carcinogenicity, and the impact on fertility, given that Ms. Kraft was still of childbearing age. At the very minimum, the risks and benefits of taking the COVID-19 genetic vaccine should have been communicated to CBS employees and the decision for bodily autonomy left for them to decide.

2. Occupational Health & Safety & The Employee‘s Right to Refuse Unsafe Work Conditions:

The right to refuse to perform job duties is embedded in Occupational Health and Safety legislation. Although it has not [yet] been inextricably linked to the more recent employers‘ demands that employees be vaccinated—violating an employee‘s ability to weigh the risks and benefits in relation to their own health and safety—it doesn‘t negate the possibility of a viable argument for revising the legislation going forward.

As it currently stands, employees in a workplace can refuse to perform their duties if they are of the belief or opinion that a certain job task can cause physical harm to themselves or others, and/or it‘s a safety risk. This is not new. Indeed, employees weighing health and safety risks while performing their job duties and responsibilities in a workplace have filed refusal to work arguments for decades, and employers have often responded favourably.

By extending this line of thinking, what if the same employee holds a widely held belief that the COVID-19 genetic vaccine poses similar health or safety risks, or as it is in this example, the vaccination options have still not been proven to be safe and effective. Shouldn‘t labour protections allow for employees to file a refusal to work for similar concerns?

Notable here, as stated in testimony, Ms. Kraft had a pre-existing medical condition. The vaccines were still experimental and in clinical trials. Adverse side effects of the vaccines were relatively unknown. Research studies and scientific papers were still contradictory with no clear consensus being reached—except by governments and media who are not medical experts.

Ms. Kraft was coerced into unlawfully disclosing a medical treatment to her employer against her will, even though there was still no evidence that a COVID-19 vaccination prevented transmission at the community level. Neither was there any proof that COVID-19 vaccinations protected against the current variants because as the media continuously reported, the virus was constantly mutating in response to vaccine-induced selective immune pressure.

Certainly, it had become evident from the daily and weekly statistics that COVID-19 vaccinations were not reducing hospitalizations or the burden on the healthcare system, raising even more questions given the initial two weeks to flatten the curve mantra. Again, Ms. Kraft was a professional working alongside physicians and nurses within a key component of healthcare (blood services), so her ability to discern health directives would have been heightened. She also cited privacy concerns, referring to the Personal Health Information Act specifically.

Still, for Ms. Kraft, it was the myriad of copy-and-paste responses that raised alarms, which is why she sought clarification from her supervisors and management team. Sadly, in her case, she was not given the option to refuse work in the hope of creating a constructive dialogue. Instead, she was terminated.

Given this eventual outcome, it could be suggested the termination was a way of avoiding listening to the viewpoints of a staff member who disagreed with the direction CBS was taking. Occupational laws are designed to protect employees from coercion or, as stated, from employees undergoing undue risk to their own health and safety.

3. Publicly funded institutions, administrative law, neutrality, and discretionary powers:

By virtue of their primary funding sources, publicly funded institutions must legally remain neutral and appear to be at arm‘s length from government dictates. Further, decision-makers within the public service must act in accordance with governing legislation. This means agent(s) of government(s) cannot negate their legislated duty in the fulfillment of their responsibilities and second, these duties must be performed without bias and/or reliance on discretionary powers.

What we learned from the testimony is EI denied Ms. Kraft‘s application for benefits—for misconduct. We do not know if her life-long medical condition was a consideration in the decision. Neither are we aware if Ms. Kraft‘s denial of EI benefits for misconduct was arbitrary, based on earlier precedent-setting decisions made against unvaccinated claimants.

EI legislation points to a process for determining EI status: 1. Show the balance of probabilities [the credibility of the information must be genuine, reasonable, plausible, and based on the facts]; give both the employer and employee an opportunity to provide information as to the reasons for the loss of employment; evaluate the evidence without prejudice; and make the decision based on the weight of evidence. Section ss49(2) of the EI Act states the benefit of the doubt is given to the claimant.

As well, if the EI officer can answer yes to both of the following questions, the claimant is disqualified: Does the information in the file support the finding that the claimant committed actions or omissions as defined by the interpretation given to the word misconduct? Does the information in the file support the finding that the claimant lost their employment because of these actions or omission?

Regarding the establishment of misconduct, it must be shown (a) that the conduct in question constituted a breach of the employer-employee relationship; (b) that the conduct was wilful (c) that there was a causal relationship between the alleged conduct and the dismissal; (d) that the alleged misconduct was not a mere excuse or pretext for the dismissal.

In some cases, an EI decision can involve who initiated the act of severing the employment and the reasons behind this action.

Recommendations

A. Employers mandating vaccinations for all employees in the workplace must provide verifiable data proving vaccine safety and efficacy, outlining the risks and benefits, including any and all adverse effects and provide employees with satisfactory options in the event of vaccine hesitancy and/or refusal.

B. Ensure employers‘ duty to adequately train staff in workplace health and safety procedures and to inform supervisors and managers of their respective responsibilities includes establishing the importance and applicability of all related legislation, including the Canada Constitution, 1867, and specific Acts such as the Personal Health Information Act.

C. Unions have an obligation to balance employee protections with arbitrary decisions and compliance orders made by employers. Unions must be required to undertake an exhaustive inquiry of the facts contributing to a grievance particularly when the complaint involves personal choice, bodily autonomy, constitutional protections, and the right to refuse unsafe work conditions.

D. When employer–employee conflicts arise from employer mandates requiring vaccination, the union must intervene with the intention of seeking a satisfactory resolution, inclusive of reviewing employer policies and collective bargaining agreements relating to sick leave and disability benefits to determine eligibility [re: extenuating circumstances].

E. Terminated unvaccinated claimants who were denied EI benefits based on misconduct must have their files re-assessed to determine whether the alleged breach in the employer-employee relationship came about because of employer forced mandates, coercion, and a person‘s right to choose bodily autonomy; a new decision must be rendered.

F. Ensure affirmative defences are available for all employees working in publicly funded institutions, including transparent appeal processes.

G. When non-arm‘s length publicly funded agencies enter into a partnership [such as the partnership between CBS and the Public Health Agency of Canada], there should be legislative assurances that the objectives of the newly intertwined relationships are not contradictory.