Risk of death cited as firefighter vaccine mandate stays in place pending union challenge

One is a female firefighter who fears the advances she's made in a male-dominated profession will be lost if her unvaccinated status sees her placed on unpaid leave.

Two more say their spouses have already lost their jobs over vaccination and now they fear they'll lose the only remaining income in their households.

And others say they told family members they wouldn't get vaccinated — and now find themselves torn between promises to loved ones and loyalty to a fire department that won't pay them unless they protect themselves against COVID-19.

Six of nine firefighters in Richmond, B.C., placed on unpaid leave because of the city's vaccine mandate provided declarations recently to a labour arbitrator tasked with determining if the rules should stay in place pending a union challenge.

Randall Noonan refused to put the policy on ice while he hears arguments for and against the mandate. In an interim ruling this week, he said the risk to the public outweighs the harm to the individuals affected.

"I understand that some union members who choose not to comply with the policy may suffer significant consequences to their personal lives," Noonan wrote.

"If I were to grant the order sought by the unions, and subsequently employees or others were exposed to the virus and became seriously ill or died, there is no amount of a monetary award that could remedy that."

97.8% compliance

Noonan's ruling provides a window into battles over vaccine mandates playing out at all levels of government.

According to the ruling, 97.8 per cent of the City of Richmond's 2,100 employees have complied with a mandate approved by city council last October, which requires them to provide proof of vaccination or be placed on unpaid leave.

Only 39 regular employees have refused, including the nine firefighters.

The International Association of Professional Firefighters and the Canadian Union of Public Employees (CUPE) have joined forces to fight the mandate.

According to the decision, the unions "have all indicated that they would not oppose an alteration to the policy which would allow for a testing procedure as an alternative to vaccination."

CUPE represents inside workers at city hall, community centres, ice arenas and an aquatic centre as well as outside workers in the recycling depot, works yard, parks and city roads.

The city says Richmond has had a total of 27 "workplace exposure events" including one known case of transmission between two employees.

Facing 'financial ruin'

CUPE expects to highlight "available alternatives to vaccination" at the hearing in the spring, arguing that there are less intrusive ways to prevent COVID-19 outbreaks.

In the meantime, the union provided declarations from some of the workers it represents, including several who said they are facing "financial ruin" and feel coerced into getting a vaccination they fear in order to provide benefits for children.

The union claims that mandate necessarily impacts their rights to privacy.

"That is, those who do not comply with the policy 'will have their vaccination status broadcast to the entire workplace' when they do not return to work," Noonan wrote.

The City of Richmond rejected that line of reasoning, arguing that the mandate only reveals a person's willingness to provide proof of vaccination, not whether they are actually vaccinated. Even so, the city says any privacy concerns are outweighed by the need to protect the public.

The arbitrator also pointed out that the policy allows for "bona fide exemptions" but that none of the union members who gave testimony "was able to produce a medical certificate setting out the need for an exemption to the vaccine policy."

'That is the nature of choices'

In making a decision on the interim application to stay the mandate, Noonan considered similar cases from across the country, including ones involving vaccine mandates at Canada Post and the Toronto Transit Commission.

In both those cases, the unions representing employees also sought injunctions against mandates pending final decisions on the policies themselves.

Courts and arbitrators have been asked whether the mandates would do "irreparable harm" to the unvaccinated employees if left in place while the fight over their legality plays itself out.

The Ontario Superior Court judge who heard the TTC case concluded the harm involved was reparable because it could be remedied with compensation and a restoration of seniority if the unions prevail.

"Fundamentally, I do not accept that the TTC's vaccine mandate policy will force anyone to get vaccinated," the judge wrote.

"It will force employees to choose between two alternatives when they do not like either of them. The choice is the individual's to make. Of course, each choice comes with its own consequences; that is the nature of choices."

Noonan didn't give any indication of how he might ultimately rule on the fate of the mandate itself, but conceded that the unions might have some valid concerns about privacy.

"I note, however, that even a lesser policy that required mandatory testing and reporting out of the results of such testing would involve an intrusion into the privacy and bodily integrity rights that may be offensive to some of their members," he wrote.