UPDATE: UNA files more than 300 grievances to address problems with AHS, Covenant immunization policy

Since September 2021, UNA has filed more than 300 individual and policy grievances with Alberta Health Services and Covenant Health to address problems with the major employers’ immunization policy.

A report by UNA Labour Relations Manager Lee Coughlan shows these include 138 unresolved grievances relating to denied accommodation on the basis of religious reasons; five grievances relating to denied accommodation on the basis of religious and medical reasons; 16 grievances relating to denied accommodation on the basis of medical reasons; 165 unresolved grievances relating to employees placed on an unpaid LOA for non-compliance with the policy.

In addition, other employers implemented policies that resulted in unpaid LOAs and in some cases termination. UNA has taken issue with deemed termination policies and grieved on behalf of affected employees.

Coughlan’s complete report is shared below and includes a timeline of relevant events from August 31, 2021, to February 22, 2022, when a hearing is scheduled in relation to UNA’s Marshalling Application to the Alberta Labour Relations Board to consolidate this large number of grievances on the same issue into one procedure.

Update on UNA Activity Regarding AHS Immunization or Testing of Workers for COVID-19 Policy

1. What has UNA done to address AHS’s Immunization or Testing of Workers for COVID-19 Policy?

Since September 2021, UNA Labour Relations Officers, Labour Relations Managers, and Local leaders have responded to inquiries and provided guidance in response to phone call and email inquiries. We remain available to respond to questions.

A timeline of steps taken by UNA is outlined below. To summarize UNA’s efforts, we filed individual and policy grievances taking issue with some but not all aspects of the Policy. Between AHS and Covenant Health, UNA has filed more than 300 individual and policy grievances. This includes: 138 unresolved grievances relating to denied accommodation on the basis of religious reasons; 5 grievances relating to denied accommodation on the basis of religious and medical reasons; 16 grievances relating to denied accommodation on the basis of medical reasons; 165 unresolved grievances relating to employees placed on an unpaid LOA for non-compliance with the Policy. In addition, other employers implemented policies that resulted in unpaid LOAs and in some cases termination. UNA took issue with deemed termination policies and grieved on behalf of affected employees.

UNA issued a legal analysis on 17 September 2022 to clarify its position on the original policy. UNA issued a revised legal analysis on 9 December 2021.  UNA filed a Marshalling Application with the Labour Board on 23 December 2021 and filed a policy grievance on 14 December 2021 to address attempts by AHS to delay hearings regarding COVID-related grievances.

UNA recently met with Senior representatives of AHS and Covenant Health to discuss the Policy Grievances. We specifically raised concerns with respect to costs of testing and availability of testing during this meeting. We highlighted AHS’s inconsistent practice with respect to paid testing for immunized employees and the general public when compared against unpaid testing for unvaccinated employees of AHS. No agreement was reached. UNA has requested additional information from AHS as part of the Marshalling Application.

While AHS refused to meet to discuss individual accommodation grievances related to COVID vaccines, other employers have met with UNA and appear willing to follow the dispute processes set out in the applicable Collective Agreements. UNA will continue to assess and advance grievances as necessary.

We appreciate that there are individuals who have gone without pay and continue to experience financial burdens from ongoing testing fees. By grieving, pursuing resolution meetings through the grievance process, bringing an application to the Board, we have taken all steps within our capacity to advance those member concerns through grievances. We appreciate many of you disagree with our decision not to challenge AHS’s proof of immunization requirement and not to challenge AHS’s proof of negative test requirement. Our decisions have been guided by existing caselaw and our endorsement of the precautionary principle. We have undertaken our own analysis as well as seeking out legal opinions from external sources.

Ultimately, the grievance and dispute process is taking longer than UNA would like but we remain committed to seeking the most timely resolution available. This was the rationale for the Marshalling Application to the Labour Board and for our request in that Application to seek an expedited arbitration on the policy issue and to use an efficient process to adjudicate individual grievances.

 

2. I was placed on an unpaid LOA from 13 December 2021 until I was able to return to work by providing proof of a negative test. Do I need to grieve? 

Yes. If you have not already done so, you should contact UNA to have us file a grievance. If you already have a grievance, see #3.

 

3. UNA filed a grievance on my behalf because I was placed on an unpaid leave and I was not provided with the option to provide a negative COVID test to report to work. I have returned to work and I have paid for testing. Do I need to file a new grievance to recover my expenses?

No. UNA has determined the wording of earlier grievances was sufficiently broad to cover the costs of testing. We have also advised AHS of our intent to take this position. If UNA is successful, we will require proof of the expense so keep receipts of your expenses.

 

4. UNA filed a grievance on my behalf when I was placed on unpaid leave. I do not agree that AHS is entitled to require me to provide proof of a negative COVID test in order to return to work. Will I be entitled to lost wages?

No. It is UNA’s assessment that the testing requirement is a reasonable exercise of management discretion. As with vaccines, rapid antigen testing is not perfect in relation to confirming positive or negative infections. However, it is a reasonable option to reduce the number of infected individuals who report to work and thereby reduce the spread of the Omicron variant, which has proven to be quite transmittable. UNA maintains its earlier position that testing should not be a substitute for immunization. The precautionary principle adopted by UNA calls for a combination of testing and immunization with appropriate personal protective equipment, hand washing, social distancing, and sanitizing.

Timeline

31 August 2021: AHS announces intention to implement a mandatory vaccine policy. 

14 September 2021: AHS issues Policy 1189 Immunization of Workers for COVID-19.

17 September 2021: UNA issues legal analysis concluding the Employer’s vaccine requirement is a reasonable exercise of management rights. UNA also wrote to AHS reserving the right to take issue with specific issues if applied inappropriately in individual circumstances.

22 October 2021: AHS announces extension to deadline to comply with its Policy.

19 November 2021: UNA files first individual grievances relating to accommodation denials.

29 November 2021: AHS revised and issued amended Policy 1189. The Policy requires Employees at some location or programs to be fully immunized and and requires Employees at other locations or programs to submit proof of negative COVID-19 tests within 48 hours of a scheduled shift. It also provided paid testing for Employees at some locations and not at others.

6 December 2021: UNA files Grievance 211864 with AHS taking issue with the 29 November 2021 revisions to Policy 1189, most significantly, the inconsistent nature of the Policy.

9 December 2021: UNA files Grievance 211893 with Covenant Health taking issue with the 29 November 2021 revisions to Policy 1189, most significantly, the inconsistent nature of the Policy.

14 December 2021: UNA files Grievance 211971.

16 December 2021: UNA makes Marshalling Application to the Alberta Labour Relations Board.

23 December 2021: UNA sends email to affected Grievors to clarify the nature of the Marshalling Application.

24 December 2021: Government announces plans to permit all AHS and Covenant employees to report to work with proof of a negative test.

4 January 2022: Non-immunized AHS Employees are permitted to report to work with proof of negative Rapid Antigen Test.

10 January 2022: The AHS revised Policy, Immunization or Testing of Workers for COVID-19 Policy #1189, became effective.

11 January 2022: AHS responded to UNA’s Marshalling application to the ALRB.

17 January 2022: Labour Board confirms a hearing date for the Marshalling Application.

19 January 2022: UNA requested information pursuant to AHS’s response to the Marshalling application. 

24 January 2022: UNA and AHS meet to discuss UNA Grievance 211864 and 211971. 

25 January 2022: UNA and AHS meet to discuss UNA Grievance 211893.

22 February 2022: Scheduled Hearing on the Marshalling Application.