2021 Return-to-Campus FAQ

Employers have an obligation under the Occupational Health and Safety Act (OHSA) to take every reasonable precaution to protect a worker. The mere existence of COVID-19 does not give workers the right to refuse work but workers do have the right under the OHSA to refuse work if they believe there is an increased risk of COVID-19 in the workplace.

Some examples might be:
• the employer fails to direct a co-worker who tested positive for COVID-19 to immediately leave the workplace
• the employer fails to take reasonable steps to disinfect an area where a person known or suspected to have contracted COVID-19 was previously working
• The employer has failed to take basic precautions such as providing sanitizer or sinks for handwashing, or requiring masks and physical distancing in accordance with health guidelines

*Based on guidance from CUPE National

An employer also has a legal duty to accommodate employees with an illness or disability that makes them especially vulnerable to COVID-19. This means that the employer must at least adjust so that employees may continue working in a way that is safe. For example, working from home is a common accommodation for immunocompromised or immunosuppressed workers. If working from home is not possible, attempts should be made to explore other possible accommodations. Members who feel they have not been safely and satisfactorily accommodated upon request are encouraged to contact the Union.

*Based on guidance from CUPE National

Yes. CUPE 2424 negotiated a Letter of Understanding around flexible work, include remote work, during the last round of collective bargaining last year. CUPE 2424 staff now have the right to place a request for remote work arrangements. The provision is currently in effect but is not limited to the pandemic, and will continue to apply into the future. Requests are subject to departmental approval based on operational needs, but cannot be unreasonably denied. Members who are unable to return to campus due to medical or family reasons should speak to their manager about possible accommodations.

The University has indicated an openness to continuing flexible arrangements and reasonable accommodations where needed. Members are encouraged to speak with their Manager.

CUPE 2424 has requested a legal opinion about the legality of implementing such a policy and what could happen to members who cannot or do not wish to comply. In a unionized context, the permissibility of employer policies is generally determined by arbitrators on the basis of reasonableness. In the current context and given the serious health and safety risks posed by the COVID-19 pandemic, it is likely that a vaccination policy that applies to all faculty, staff and students on campus would be found by an arbitrator to be a reasonable exercise of management rights, provided the policy does the following:

• Provides individuals with a choice as to whether or not to be vaccinated (although that choice may entail other consequences up to the level of unpaid leave)

• Accommodates an individual based on medical grounds or other protected grounds under the Human Rights Code (i.e. religious observance). Employers may ask for evidence to support a request for exemption.

• Follows provincial public health guidelines and is part of a broader health and safety approach

• Respects employee privacy, including by not requiring them to disclose their vaccination status publicly or to other staff. Declarations are to be made through the current cuScreen tool as per the instructions in the University’s latest update earlier today. Note that you should not be asked directly by anyone, including your Manager or department head, to declare your vaccination status and should report any such incidents to the Union.
• Allow for the possibility of adapting to changing factual circumstances

Carleton’s policy so far appears to contain these characteristics although some details have yet to be provided or proven about the implementation, application, and possible outcomes of the policy.

The Union will continue to seek information and clarification about how the policy will be implemented and applied. The Union has a duty of fair representation to all members regardless of their vaccination status and will provide advice or representation to members should it be required with respect to individual outcomes.