Brothers, sisters, and friends,
Earlier this year, CUPE created a National Safe Union Spaces Working Group to address serious concerns about gender-based violence and other forms of harassment and discrimination in our union.
Our Working Group, advised by expert external consultants, has been reviewing CUPE’s existing tools and processes, identifying gaps where we need changes or additional resources to ensure safer union spaces for all members.
As part of this important effort, we are launching a survey. The survey will be open for two weeks (closing September 28).
We encourage you to participate in this survey, and to share it widely in your CUPE networks, including social media. Your active participation in the distribution of this survey will be key to the project’s success.
We acknowledge that these issues are widespread. All of us must work together to change this situation. We need you to help us identify actions we can take and policies we can adopt to make CUPE more welcoming for every member.
Violence, harassment, and discrimination seriously undermine union solidarity. Until all of us are safe, none of us are safe.
The National Safe Union Spaces Working Group
COVID-19 has been with us for more than 18 months now, and CUPE members across the country have been on the frontline of this pandemic from the beginning.
The pandemic has been exhausting for our members, but there is an end in sight – if enough people get vaccinated. Vaccinations against COVID-19 are safe and effective and readily available, and uptake across the country has been strong. But with new and prevalent variants causing a fourth wave of infection across the country, we need to do better.
CUPE has always encouraged our members to get vaccinated at their earliest opportunity, for the protection of ourselves, our coworkers, and the members of the public accessing the services our members provide. Everyone who can, should get vaccinated against COVID-19.
CUPE welcomes efforts to ensure safer workplaces and increase vaccination rates. This includes increasing vaccine accessibility for workers, accommodating workers who are not yet fully vaccinated, and the small number of those who cannot be.
Governments and employers across the country are discussing vaccine mandates for our workplaces. The following principles should guide CUPE representatives and locals when dealing with workplace vaccine mandates:
Richmond, B.C. – With the heatwave across B.C. expected to last for the next several days, WorkSafeBC is reminding employers and outdoor workers about the risk of developing heat stress. If not recognized and treated early, heat stress can lead to heat exhaustion and heat stroke.
“In the last three years, there have been almost 100 accepted claims for work-related injuries caused by heat stress — and these are preventable injuries,” said Barry Nakahara, Senior Manager of Prevention Field Services at WorkSafeBC. “We’re reminding workers and employers to take steps to prevent heat stress. This includes reducing exposure to the sun wherever possible, drinking lots of water, wearing the right clothes, and taking rest breaks in cool, well-ventilated areas.”
Symptoms of heat exhaustion include excess sweating, dizziness, fainting and muscle cramps. Symptoms of heat stroke include cessation of sweating, an increased breathing rate, confusion, seizures and even cardiac arrest.
To prevent heat-stress injuries, WorkSafeBC requires employers to conduct heat stress assessments. As appropriate, employers must have a heat stress mitigation plan that provides education and training in recognizing the symptoms of heat stress and heat stroke.
Below are some measures that employers and workers can do to prevent heat stress.
Prevention of Heat Stress: Employers
Prevention of Heat Stress: Workers
WorkSafeBC engages workers and employers to prevent injury, disease, and disability in B.C. When work-related injuries or diseases occur, WorkSafeBC provides compensation and support to people in their recovery, rehabilitation, and safe return to work. We serve approximately 2.3 million workers and 255,000 employers across B.C.
For more information, contact:
Media Relations, WorkSafeBC
Just a reminder to complete the Health and Safety Survey. Here are the links to the survey: K-12 Provincial Joint Health and Safety Small Site Representative Survey https://www.surveymonkey.com/r/MTDQ9WW
Human Rights Code RSBC 1996, c 210, to hear complaints brought to it by action that alleges contraventions of the enforceable clauses of the Code. The Code, among other provisions, establishes the prohibited grounds protected from discrimination “in employment” in sec. 13 of the Code, which include grounds such as might be considered to be inalienable characteristics of a human being like race, sex, sexual orientation, ethnicity, and others, or those which are a matter of personal conviction in a free and democratic society – such as religion and political views.Members may be aware of the Human Rights Tribunal, established pursuant the
Discrimination in employment
13(1)A person must not
(a)refuse to employ or refuse to continue to employ a person, or
(b)discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
(2)An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).
(3)Subsection (1) does not apply
(a)as it relates to age, to a bona fide scheme based on seniority, or
(b)as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.
(4)Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
Employees represented by a trade union do not normally seek remedy for an allegation of prohibited discrimination via the avenue of a complaint to the Human Rights Tribunal, though that option is still available to them. Rather, unions will normally proceed with the claim on behalf of a member through their customary dispute resolution mechanism of grievance arbitration.
A grievance procedure is able to provide for the same or similar remedy as would the Tribunal process, and a labour arbitrator has the necessary authority and power to award human rights damages and to interpret human rights law as applicable to the matter before him or her. However, in British Columbia, unlike in Alberta, the BC HRT generally will accept a subsequent complaint to re-try an issue already decided by an arbitrator on the same facts until it reviews the decision for its own assessment of whether it believes the arbitrator applied the same principles it would, and will not dismiss the matter outright on the basis that another process of competent legal authority had already decided in the matter, as it would in Alberta.
Where a unionized worker has been terminated from employment and successfully advances a human rights complaint before the HRT, the Tribunal will only award damages, whereas a labour arbitrator has the authority to, and could, reinstate the employee to employment.
This is another reason why in a unionized environment we would proceed with a claim via grievance, rather than a complaint to the Tribunal.
However, members may not be aware of the HR Commission, a body established to proactively investigate and make recommendations pertaining to the advancement of human rights more broadly, rather than the Tribunal which hears specific complaints brought to it by application.
On Aug 4, 2020, with Black Lives Matter demonstrations happening in the United States, Royal assent was given to the amendments enacted by the government of British Columbia to the Code that give the Commission greater powers to conduct its work which include:
It is important to remember that discrimination itself is not prohibited where based in bona fide requirements. An employer must not generally discriminate on the basis of disability, for example, but where the requirements of the job require a particular ability, such as those of physical fitness for police officers, for example, the employer may discriminate against someone with a disability or inability to attain a particular fitness standard.
Continuing with the example of a police officer, where the police officer is initially employed, and becomes disabled later, the employer is not required to keep the police officer employed in his previous capacity due to his new disability, but is required to accommodate him in another capacity, wherever and as much as possible, up to a point of undue hardship. In this example, then, the disabled police officer may no longer be capable of working in a frontline capacity, but could do many other ancilliary jobs, such as dispatch, court document delivery, clerical support, teaching cadets, and so on. The employee, the employer and the union are all part of a nexus of interested parties, all of whom are required to participate and actively work toward an acceptable accommodation of a disabled employee.
Sometimes an employee may request an accommodation to prevent further complications of an illness or injury, such as those living with immunocompromised health. In those circumstances, the accommodation process is much more difficult, since the number of conditions that could impact on a person’s health could effectively render the employee unemployable, and have the employer reach the point of undue hardship quickly. Closer to our circumstances, an employee may make a claim that they are unable to attend to work in September due to the Coronavirus pandemic, since their age and health status make them high at risk of contracting the virus. What should be the process and the outcome of such a request, legally speaking?
Let’s consider this issue carefully, giving some analysis of each of the steps of the process and some theory behind it.
Request for accommodation:
In this theoretical example, the employee is requesting to be accommodated. But, it is possible that the employee has a very specific view of what an accommodation is, and possibly an incorrect view. The Employer and the Employee are in a contract of employment. In a unionized context, the Union is actually in a contract with the Employer on behalf of a collective of employees. This contract requires the employee to attend to work as agreed and perform the functions of their employment; the Employer is required to pay them for such duties, provide managerial direction and supervision and communicate with the employee in the event of required changes, performance concerns and all those things which form the customary duty of management.
A request for an accommodation is asking the Employer to examine the workplace and see if a better fit could be made giving the employee special preferrential treatment due to their health concerns. The accommodation is not a process whereby the employee is excused from working, to be able to remain at home while keeping employment status – that process would require an application for a leave on the basis of medical concerns. Where an accommodation has the outcome of determining that an employee should remain at home, that accommodation process has failed as the employee’s circumstances have been judged to go beyond undue hardship to the Employer, and word of caution, members do not want to reach this point as it effectively means they could be terminated on a non-culpable basis as no meaningful accommodation with the Employer is possible and their disability or illness is such that they can no longer be employed for the Employer.
In this example, we are considering an employee who makes a request for accommodation on the basis that they are at higher risk of contracting Coronavirus. What sort of medical information would an employee need to provide?
In the case of our disabled police officer above who was injured on the job and became a parapalegic, the limitations of his abilities are very clear: he must use a wheelchair, he cannot run, walk, jump over fences, etc. All this information would be provided by his physician to his employer to aid in the process of adequately accommodating him.
In the instance of an employee making a claim that they are at a higher risk of contracting a virus, we are dealing with a much more subjective claim – as the employee has not actually contracted any illness, may never contract the virus, and if contracting the virus, may not actually even get sick. As such, this claim is speculative, and is asking the employer to give preferential treatment to some employees over others, which is a request not for equity or equality, but for privilege, and therefore has to be appropriately justified by medical information. A medical doctor will be required, likely, to certify that in their professional opinion, the patient is at elevated risk to that of the average person, and provide the grounds for such an assessment. In effect, the doctor is making a guess, but it is an informed scientific guess rather than anxiety about contracting the virus any person might have.
By analogy, a person may make a claim that they are at higher risk of falling down due to their anxiety about falling down, and request of the employer to work from home, since the possibility of an incident of falling down at their home lowers their anxiety about falling down, which has the effect of actually having them not fall down or having them fall down less. In this case, the Employer would be looking at a situation that has not happened, and considering significantly altering their operation to prevent the employee from experiencing something that has not happened, may not ever happen, all on the belief, that it may possibly happen. To put simply, the employer would not be required to accommodate this request, as the employee is not suffering from an illness or injury – but requesting to be spared the possibility of experiencing an injury.
For school district employees, the facts are actually even more straight-forward since members work in front-line jobs that are not conducive to working from home with possibly the exception of clerical staff. Since students will be in the schools, and not at home as in March, working from home is not likely to be possible.
The medical information, then, would have to certify not that the employee is at elevated risk of contracting the virus alone, but is at elevated risk of not recovering from an infection as easily as an average person or having a much more complicated and difficult recovery.
What is the most likely outcome, then, in our theoretical example of an employee requesting an accommodation on the basis of heightened risk to experience negative impacts of the virus? The most likely outcome of a bona fide request is that the employee would be given alternate duties that limited their contact with other people, such as custodial duties after the instruction day is over or in more isolated physical environs where, again, the most likely tasks will be cleaning facilities and other custodial work. Remember, the accommodation is not a process to excuse the employee from working, but to attempt and find other duties at work that meet the limitations of their illness or injury.
Under the law, the employer is not required to:
Members who do not wish to expose themselves to the possibility of contracting the virus, and are not convinced that it is safe to work, but who cannot meet the requirements of a bona fide accommodation, or who do not want to perform custodial duties as the likely accommodation, or whose primary purpose of the accommodation request is the hope they would be permitted to remain at home, are best to request a medical leave of absence and use their sick days for income, or simply take a leave of absence without pay if they have other means of supporting themselves. They will not likely qualify for any of the government supports, as work is available to them, but this may be the cost of the peace of mind they are seeking in choosing not to take the risk of potential contraction of the virus.
Members who do have a medical condition that would make recovery from the virus more difficult, or would make them more succeptible to contracting the virus, can request an accommodation and should contact the Union if they run into any difficulties and need our assistance. We remain available to you and will advocate for you including filing a grievance for failure to accommodate.
Should you have any more questions, feel free to post a comment below, and I will respond as soon as I can.
CUPE National Representative