BRIAN DOODY, MA, LLB Lawyer | Avocat DOODY COUNSEL LEGAL SERVICES 6-400 Daly Avenue | Ottawa | Ontario | KIN 6H2 E-mail: doodycounsel@gmail.com | Pax: (226) 785-0957 ‘Telephone/text: (519) 872-1905 | Twitter @DoodyCounsel October 19, 2021 Mr. Chris Aylward, National President Public Service Alliance of Canada (PSAC) 233 Gilmour Street Ottawa, Ontario K2P OP 1 Dear Mr. Aylward: Subject: —_Strategic advice for federal employees defending against Treasury Board's implementation of the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (the “Policy’) This letter gives strategic advice to federal employees defending against management's implementation of Treasury Board's Policy on COVID-19 Vaccination for the Core Public Administration including the Royal Canadian Mounted Police. \tis not legal advice. The facts in each case will be different. Discuss your case with a lawyer before you proceed. In'sum, as currently drafted, the Policy equires managers to identify employees who do not upload an “attestation” of their vaccination to Treasury Board's GC-VATS personal information bank prior to October 29, 2021. Managers are then required to create unique personal information banks about those employees’ healthcare or religious affiliation (or possibly their family members’ medical history of religious opinion). Under the Policy, the managers must then decide in each case whether the employee is “unwilling” to provide the attestation (prior to piacing “unwilling” employees on unpaid leave under the Policy) or whether to accommodate employees under the Policy (notably by mandatory testing). At the website hosting the GC-VATS (Vaccine Attestation Tracking System) personal information bank, federal government employees are asked to declare (a) that they have been fully vaccinated, (b) that they are unvaccinated “because [they] are requesting an accommodation,” or (c) that they are unvaccinated. Employees are further informed at the website that "[als early as November 16, if you refuse to disclose your vaccination status or remain unvaccinated, you will be subject to administrative leave without pay.” In my view, the Polfcys main shortcoming is that it allows managers to place employees on leave without pay after collecting private information from the employees about their medical history or their religion, or both, all of which is protected under the Privacy Act. The Policy purports to accommodate unvaccinated employees “based on a certified medical contraindication, religion, or another prohibited ground for discrimination as defined under the Canadian Human Rights Act’ (para. 3.2.1). Although the Policy makes the deputy heads of departments responsible for ensuring that their managers review the2 employees’ requests for accommodation (at para. 4.1.8.2), the managers collect and use employees’ personal information when deciding whether to accommodate in each case. In my view, a strong defence against the Po/icystarts with requesting an accommodation based on the “fundamental freedoms’ of “conscience and religion” (section 2(a)) and the right to equality of religion (section 15) in the Canadian Charter of Rights and Freedoms, invoking religion as the ground for discrimination under the Canadian Human Rights Act. There can be no doubt that the Policys administrative purpose includes accommodating unvaccinated employees by creating an obligation for some unvaccinated employees to be tested regularly for COVID-19, as an alternative to an “attestation” of their vaccination (see: paras.4.1.3.1, 4.1.8.1 (4" line), 4.1.8.2 (2 line), 4.2.3 (4" line), 4.3.2, 4.3.5 & 5.3). Next, the employee should invoke the Privacy Actto ensure that their personal religious information provided to their manager is used only for the “administrative purpose” for Which itis collected, namely, to allow managers to [address] requests ... on a case-by case basis and up to the point of undue hardship for employees who are unable to be fully vaccinated based on .. religion,” “mandatory testing,” and “privacy” (para. 4.1.8.2). ‘An employee's request should state clearly that they are seeking accommodation on the grounds of “religion” and are willing to be tested regularly, in accordance with the Policy. If a manager refuses to accommodate the request made pursuant to para. 4.1.8.2 of the Policy, the appropriate remedy is a grievance before the Federal Public Sector Labour Relations and Employment Board (Directive on the Duty to Accommodate, at para. 5.4). Presuming the case can be made that the employee's right to “freedom of conscience and religion” is worthy of Charter protection in respect of a request for accommodation, the employee's concomitant right to privacy under the Privacy Actmeans the employee can argue that the authority conferred on the Treasury Board’s Chief Human Resources Officer (the “CHRO") to “[prescribe] any oversight, systems, information requirements, or reporting for the purpose of implementing this policy” (at para. 4.5.1) does not provide the CHRO with a "back door’ to direct managers to accommodate some religions but not others. Auditing is not the “administrative purpose” for which the information is collected, By focusing on their manager's decision as the governmental “action” that is the subject- matter of the grievance, it is more difficult for the government to justify an infringement of a Charter right. When government action “prescribed by law” is merely an administrative decision, the manager's authority to decide is “demonstrably justified” under the Policy. Your union members are welcome to e-mail me to arrange a free in-person consultation. Brian Doody (Counsel) (Version francaise disponible sur demande)