A decision is expected by late January 2022 on PSAC’s policy grievances defending the use of 699 leave for federal public service workers during the pandemic.
PSAC presented its case against Treasury Board for restricting the use of 699 leave for members who were unable to work because of child care, elder care, disability, or other issues brought on by COVID-19 at Federal Public Service Labour Relations Board hearings throughout the summer and fall.
Discriminatory leave policy
The grievances challenge the policy for forcing members to exhaust all other available paid leave—including vacation, sick, or family leave—before they can access 699 leave for COVID-19-related reasons.
At the hearing, PSAC argued that the employer’s 699 leave policy violates members’ collective agreements and could lead to discriminatory outcomes for groups who are disproportionally impacted by the pandemic.
Next steps and individual grievances
The Board chairperson intends to deliver a decision by the end of January 2022.
PSAC continues to fight to ensure all PSAC members – especially those most impacted by COVID-19 – have the support they need to get through the pandemic.
Temporary changes to 699 leave
As of December 20 2021, Treasury Board has put in place temporary changes to make it easier for federal public service workers with caregiving responsibilities to access 699 leave during the pandemic.
Treasury Board also clarified their language around the use of vacation leave in relation to 699 leave. These are key issues PSAC raised during policy grievance hearings, and it’s encouraging to see the government proactively implement these changes before a decision is delivered by the labour board.
If you need leave related to COVID-19, you should continue to request 699 leave. If your request is denied or you are forced to take other types of leave, reach out immediately to your PSAC regional office or your component labour relations officer to discuss whether you should file an individual or group grievance.
Members employed by Treasury Board and PSAC-UTE members are also eligible for paid 698 leave to attend COVID-19 vaccination appointments.
On October 6, 2021, the federal government released its mandatory vaccination policy. The policy applies to employees in the core public service. Since that time, PSAC has released an FAQ that is regularly updated.
The following information is to be read as a guideline only. It will be subject to change as the policy is implemented and the jurisprudence develops. The federal government’s mandatory vaccination policy states that it will be subject to review in six months.
Duty of fair representation
While PSAC has a duty of fair representation in light of its status as the exclusive bargaining agent, this does not equate to an absolute right to representation on every issue that members raise to challenge. For example, members who choose not to be vaccinated and have no legitimate human rights grounds to request an exemption are unlikely to succeed with grievances that challenge the legality of this new employer policy.
The duty of fair representation simply requires that the Union turn its mind to the issue raised by the member, review and analyse it and provide a rationale or explanation.
PSAC has clearly stated that it supports a vaccine mandate within specific parameters to protect the health and safety of all employees in the workplace. PSAC is not advising or counselling members without legitimate medical conditions or religious beliefs to find ways to avoid the policy. Doing so would also be contrary to our obligations as parties to policy health and safety committees mandated under Part II of the Canada Labour Code.
Grievances involving financial loss
The employer has stated that members were to be placed on leave without pay (LWOP) as early as November 15 if they were unvaccinated or had not submitted their vaccination status and had no legitimate human rights reason.
Grievances challenging the fact that a member has been placed on LWOP because they simply chose not to be vaccinated are very unlikely to succeed or to be referred to arbitration as there are arbitral decisions which have deemed LWOP to be a reasonable consequence of an employee’s refusal to follow a mandatory vaccination policy. The policy is likely to be seen as serving a legitimate purpose, reasonable and a good balance between the workplace concern (i.e., spreading COVID-19) and the intrusion on employee’s privacy.
Grievances involving a refusal of duty to accommodate on human rights-related grounds
PSAC is beginning to hear that some managers have stated that medical accommodations will not be allowed even though the policy clearly allows for medical accommodations and exemptions pursuant to the collective agreement and the Canadian Human Rights Act(CHRA) if the required documentation is provided and it is approved by management. Any blanket decisions not to accommodate members with legitimate human rights reasons should be challenged with a grievance alleging a failure of the duty to accommodate and discrimination on the basis of disability and possibly other intersecting grounds.
Grievances that deny members with sincere religious beliefs from obtaining an accommodation may be more difficult to detect. However, the policy supports exemptions on the basis of sincere religious belief with a sworn affidavit signed by a commissioner of oaths that attests that the person chooses not to be vaccinated due to their sincere religious beliefs.
As in all normal circumstances, a member requesting an accommodation must collaborate with the employer by providing supporting documentation.
Grievances that attempt to get around the policy
There is nothing in the policy that indicates that managers will be authorized to replace LWOP with sick leave, vacation leave, or personal leave if the intent is to circumvent the mandatory vaccination policy.
Falsifying or providing inaccurate information regarding the vaccination status may result in severe consequences and will likely lead to disciplinary actions from the employer.
As a result, it would be extremely difficult for PSAC to support grievances that attempt to circumvent or delay mandatory vaccination without any legitimate human rights reason.
Grievances involving personal belief or political conviction
A personal belief or political conviction is not a ground covered under collective agreements or the CHRA.
Grievances challenging the requirement for teleworkers to be vaccinated
The vaccine policy requires all federal public service workers in the core public administration to be vaccinated even if the majority are still teleworking. There is no exception for people who are teleworking unless the request to telework is a specific human rights accommodation following an individualized assessment.
Therefore, PSAC will not be supporting grievances by members who choose not to be vaccinated and use the fact that they always telework as a justification for their decision.
No policy grievances will be filed on the basis of a failure to meaningfully consult with bargaining agents as the remedies are limited and are unlikely to be effective or meaningful for individual members. In the event there is a widespread privacy breach in the bargaining unit regarding the use, disclosure or storage of members’ personal medical information, PSAC will analyze the option of filing a policy grievance or a privacy complaint.
Source: PSAC Representation and Legal Services Branch
Employers are looking ahead to how and when they can safely reopen offices, and many employers — including municipalities, provinces, and the federal government — are implementing vaccination mandates for their employees.
PSAC remains in support of vaccination requirements to protect the health and safety of our members and their communities.
We have compiled several frequently asked questions to provide PSAC members working in sectors outside the federal government with everything they need to know on this important issue. This page will be regularly updated to reflect the changing circumstances.
The federal government released its mandatory vaccination policy for federal public service workers on October 6, mandating vaccinations for all employees in federally regulated workplaces, including more than 160,000 PSAC members.
We have compiled frequently asked questions to provide PSAC members with as much information as possible on vaccinations in the workplace. This page will be regularly updated to reflect the changing circumstances.
PSAC fully supports a federal vaccination policy to protect the health and safety of our members and the Canadians they serve. We know that increasing vaccination rates is the best and most reliable way to slow the spread of COVID-19 in our workplaces and our communities and encourage our members to be vaccinated.
However, if the goal is to keep the workplace healthy and safe, this policy still falls short.
The government rushed their vaccination policy without meaningful consultation with the unions representing federal public service workers. Treasury Board gave unions less than a single business day to provide feedback on their policy, and then failed to incorporate any of the changes into their final policy. Our union supports the government’s vaccination framework, but how it is applied matters, and we expect the employer’s implementation of the policy will respect:
Members’ privacy rights: Any personal information collected must be shared on a need-to-know basis only and collected and stored for a limited period and in keeping with the Privacy Act.
Bargaining rights: Bargaining agents should be included in meaningful consultation as these frameworks and policies evolve, including adequate time to provide feedback and input.
Human rights: Members’ human rights must be protected under the Canadian Human Rights Act, including the duty to accommodate.
Health and safety: Workplace health and safety committees must be consulted about the implementation of the policy.
Equity and inclusion: The policy must consider the adverse impacts of the policy on historically disadvantaged groups of employees, including racialized, Black and Indigenous employees.
Consistency: The government’s vaccination policy should also apply to federal contractors and the general public who interact with federal public service workers to ensure the health and safety of our members. The vaccination policy also needs to be applied consistently across federal departments and agencies.
Fairness: Employees who are required to be vaccinated or who experience side effects should not have to use their own sick leave banks, and this should not be left up to the discretion of individual managers.
While the vast majority of PSAC’s membership is fully vaccinated, PSAC will continue to represent unvaccinated members who have punitive action taken against them as a result of their vaccination status.
We’ll continue to work to ensure the implementation of the policy protects the health and safety and human rights of our members while ensuring their rights to privacy are respected.
Keep your member info up to date to receive all the latest updates about the government’s vaccination policy, bargaining issues and more.
In a recent meeting with PSAC and other federal public service bargaining agents, Treasury Board committed to ongoing consultation in the development of a vaccine requirement framework.
The employer has confirmed that no new policy will be implemented until after the current federal election.
PSAC remains in support of vaccination requirements to protect the health and safety of our members and their communities. Throughout the consultation process, PSAC will ensure the protection of members’ rights in the workplace, as well as their right to privacy.
We will continue to provide updates as the federal government develops its vaccination requirements plan.
This week, national political party leaders have made concerning statements about disciplining or terminating federal public service workers who choose not to be vaccinated as part of the government’s vaccine mandate proposal.
PSAC supports vaccination requirements for federal workers to ensure the safety of our members in their workplaces, and to protect our communities, but using discipline and termination to enforce them is unacceptable.
PSAC has been in in consultation with the federal government on their vaccination proposal, and our position is clear: employees with a valid medical reason for being unvaccinated, or for reasons protected by human rights legislation, must be offered a formal accommodation under the law.
In addition, if there are workers who are unable or unwilling to be vaccinated, the government must temporarily reassign those employees to other duties where possible, or allow for alternate work arrangements such as remote work.
Where required, other measures should be explored, including regular screening and rapid testing.
PSAC will continue to play an active role in consultations as the federal government develops its vaccination requirements plan. We will do our utmost to ensure the safety our members while protecting their rights in the workplace – including their right to privacy.
PSAC will defend the use of 699 leave for federal public service workers during the pandemic at adjudication hearings with the Federal Public Service Labour Relations Board August 30 to September 3, 2021. This will be a virtual public hearing.
PSAC filed several policy grievances with Treasury Board, CFIA and other agencies for restricting the use of 699 leave for members who were unable to work because of child care, elder care, disability or other issues brought on by COVID-19. We will also be challenging Treasury Board’s policy that forces members to exhaust all other available leave like vacation, sick, or family leave before they can access 699 Leave for COVID-19-related reasons.
The restrictions disproportionately impact marginalized groups who have been the hardest hit by the pandemic, including women, Indigenous people, racialized employees, workers with disabilities, high-risk workers and workers with family obligations. This violates both members’ collective agreements and the Canadian Human Rights Act. PSAC will also be filing a human rights complaint with the Canadian Human Rights Commission.
PSAC has combined the Treasury Board policy grievances so that they can be heard together at adjudication to speed up the process, and grievances filed with agencies will be on hold until the Treasury Board hearing is resolved.
We continue to fight to ensure that all PSAC members – especially those most affected – have the support they need to get through the pandemic. If you need leave related to COVID-19, you should continue to request 699 leave, and if your request is denied or you’re forced to take other types of leave like vacation, family or sick leave, you should immediately reach out to your PSAC representative or your component labour relations officer to discuss whether you should file an individual or group grievance.
Members employed by Treasury Board and PSAC-UTE members are also eligible for paid 698 leave to attend COVID-19 vaccination appointments.
We’ll continue to provide regular updates throughout the adjudication process.
As the rollout of the COVID-19 vaccination begins to gain momentum, PSAC would like to remind all federal employees that they can request paid 698 leave to attend their vaccination appointment.
With the 698 leave, employees have access to up to a half-day of paid leave to attend a medical or dental appointment. This includes an appointment for vaccination, and time to travel to and from the vaccination site.
The paid leave is possible under a Treasury Board policy covering medical and dental appointments, but PSAC has been in discussions with Treasury Board to ensure that employees who are getting a vaccine that require a booster are also entitled to paid leave for the second vaccination.
However, since 698 leave is only available to employees of the federal government, we ask that provincial and territorial governments follow the federal Treasury Board example and not penalize employees by docking their pay when they protect themselves and their community by getting the COVID-19 vaccine. All workers, regardless of their jurisdiction, should be able to get vaccinated without worrying about their paycheques.
If you have any questions about your rights on the 698 leave, reach out to your local shop steward, your Component, or the PSAC regional office for help and support.