Worker complained about genetic code testing while on unpaid leave for non-compliance with vax mandate
The Canadian Industrial Relations Board has rejected a worker’s complaint that her employer discriminated against her for refusing genetic code testing when she was placed on unpaid leave for non-compliance with a mandatory vaccination policy.
The worker was employed with Canada Post. On Oct. 29, 2021, Canada Post implemented a mandatory vaccination policy requiring all employees to be vaccinated against COVID-19 and attest to their vaccination status by Nov. 12. Employees who didn’t comply would be placed on administrative leave without pay two weeks later, unless they were granted a human rights-related exemption.
On Nov. 15, the union grieved the vaccination policy and also sought an interlocutory cease-and-desist order. However, both the interlocutory order and the grievance were dismissed by arbitrators, with the latter occurring on April 27, 2022.
The worker filed a complaint of genetic testing by her employer under the Canada Labour Code on Dec. 15, 2021, asserting that placing her on unpaid leave for non-compliance with the mandatory vaccination policy was discrimination under the code. The code prohibits an employer from disciplining or threatening to discipline an employee because they refuse a request from the employer to undergo a genetic test, refuse to disclose the results of a genetic test, or on the basis of genetic test results.
Vaccines ‘genetic tests’: worker
The worker argued that COVID-19 vaccinations were “experimental, modified mRNA gene therapy platform injections” that were part of “an ongoing global genetic test.” This was a violation of the collective agreement that prohibited discrimination on the basis of “genetic characteristics,” as well as the Canadian Charter of Rights and Freedoms, she said.
She also said Canada Post falsely claimed in the policy that vaccination was shown to be effective in reducing the transmission of COVID-19.
The worker also accused Canada Post of extortion when she was informed tjat if she remained on unpaid leave for more than 30 days, she would be charged for both portions of her pension, disability insurance, life insurance, and extended health care plan.
The worker applied for a human rights exemption from the vaccination requirement, but Canada Post rejected it. She then requested a religious exemption, but the corporation refused, telling her that she couldn’t “repeatedly attest to the same vacation status.” The worker was placed on unpaid leave on April 22, 2022.
The union requested intervenor status to the worker’s complaint before the Canadian Industrial Relations Board (CIRB), but the worker resisted, saying the union “aided and abetted the crimes of extortion, intimidation, assault, racketeering, premeditated murder, treason, malfeasance in public office, violations of the Genetic Non-Discrimination Act and crimes against humanity” by agreeing to the mandatory vaccination practice. The CIRB found it unnecessary to grant the union intervenor status.
Arbitration dealt with mandatory vaccination issue
Canada Post argued that the worker’s complaint should be dismissed on a preliminary basis because the subject matter had already been dealt with in arbitration. Although the union’s grievance of the vaccination policy didn’t raise the issue that it was a breach of genetic testing provisions in the Canada Labour Code, this was “presumably” because the union understood that COVID-19 vaccinations weren’t a form of genetic testing.
The corporation also noted that the mandatory vaccination policy didn’t require employees to undergo the specific types of testing described in such provisions.
The CIRB noted that the code defined “genetic test” as “a test that analyzes the employee’s DNA, RNA, or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.” The code also explained that the CIRB could reject a genetic testing complaint against an employer if:
- it was satisfied that the complaint was frivolous or vexatious
- there were other means to resolve the subject matter available to the employee
- the subject matter of the complaint was adequately dealt with by “a court, tribunal, arbitrator, or adjudicator.”
The CIRB also noted that the arbitration decision dealing with the union’s grievance found that “mandatory vaccination was the most effective means for the employer to accomplish its necessary health and safety objectives” based on evidence that vaccinations were safe and effective and there was a significantly lower risk of becoming infected by being vaccinated.
In addition, Canada Post’s vaccination practice was found to be “a reasonable exercise of management rights and responsibilities under the collective agreement, and pursuant to its obligations under the Canada Labour Code.”
Grievance, complaint ‘the same’
The CIRB found the “essence of both the grievance and this complaint are the same,” as they both addressed whether Canada Post was entitled to place employees who refused to be vaccinated on unpaid administrative leave. Although the worker’s argument centred around her claim that the vaccines were “experimental modified mRNA gene therapy platform injections,” this didn’t change the thrust of the issue, said the CIRB.
The CIRB determined that the subject matter of the worker’s complaint was adequately dealt with through the union’s grievance with a labour arbitrator.
The board also found that COVID-19 vaccines didn’t meet the definition of a genetic test in the code, as it didn’t involve an analysis of the worker’s genetic material. Even if the worker’s argument that the injections altered someone’s RNA, DNA, or chromosomes – which was refuted by accepted scientific evidence - there was no testing or analysis involved, the CIRB said, in finding that the code “was never intended to prohibit vaccinations or mandatory vaccination polices.”
The worker’s complaint was dismissed on a preliminary basis. See Gurney v. Canada Post Corporation, 2024 CIRB 1107.
