Nova Scotia Labour Board dismisses worker’s vaccine appeal after employer drops mandate

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A worker in Nova Scotia who refused the COVID-19 vaccine, and fought his employer’s mandate, has had his appeal dismissed because there was no longer an active dispute.

That’s because his employer, Nova Scotia Lands, dropped the vaccine mandate and the worker didn’t miss any work because he was an on unrelated medical leave during the time in question.

His fight to force a ruling, should the issue arise again, was rebuffed by the Nova Scotia Labour Board. It said it was “not a wise use of tribunal resources” and rejected the idea that a ruling might assist future cases.

“Any future similar situation that may arise would likely be based on current day epidemiology and scientific data as to risk and benefits of various public health and workplace safety mitigation measures,” it said.

What happened

Nova Scotia Lands, a provincial crown corporation, adopted the Province of Nova Scotia’s vaccine directive on Nov. 1, 2021, following the outbreak of the global pandemic. The worker, who was on a medical leave at the time, submitted a request for an exemption based on religion or creed on Nov. 9, 2021.

That was denied. A request for an accommodation based on the Human Rights Act, submitted on Nov. 10, was also refused by the employer.

On Nov. 16, 2021, he exercised the right to refuse work under provincial health and safety legislation.

His concerns were sent to the company’s joint occupational health and safety committee (JOHSC), which voted unanimously to uphold the employer’s vaccine directive and advised that the worker must return to work. On Nov. 29, 2021, that message was delivered to him by his employer.

That same day, the worker contacted the OHS Director to investigate his work refusal because he had not received a satisfactory answer from his employer’s JOHS committee. On Nov. 30, 2021, his employer wrote to him to inform him that, had he not already been on an approved medical leave, he would have been placed on an unpaid leave.

On Dec. 2, 2021, the OHS officer assigned to the file determined he had not established a valid work refusal.

While all this was going on, his unrelated medical leave was active — and was extended by the case manager to Jan. 13, 2022, as short-term illness (STI) leave.

What the worker wanted

The worker appealed the ruling of the OHS officer, and that cased landed in front of the Nova Scotia Labour Board. The worker sought the following remedies and declarations:

  • the health risks of forced vaccinations are real and that alternative risk management protocols can be substituted
  • Nova Scotia Lands’ Nov. 1, 2021, COVID prevention directive was not in compliance because it failed to involve the JOHS committee in the development of the policy
  • the right to refuse work provisions of health and safety legislation was used appropriately by him
  • the employer failed to provide information regarding OHS issues at the workplace as required under the act.

The employer’s response

Nova Scotia Lands said it never suspended the worker from his employment due to the vaccine directive because he was on an approved medical leave.

It also argued that the rights in health and safety legislation were not meant to be used as a tool to force an employer to yield to an employee’s “irrational, subjective or idiosyncratic notions of health or well-being.”

They were meant, as section 43(1) of the act expressly states, to shield employees who had “reasonable grounds for believing that the act is likely to endanger the employee’s health.”

The Director’s response

Nova Scotia’s Director of Occupational Health and Safety also weighed in on this case.

It said the ultimate consideration before the board in relation to the work refusal was whether or not there was a hazard, and whether the mitigation strategy implemented and reviewed by the OHS officer was reasonable.

Its position was simple: There is no evidence that requiring a COVID-19 vaccine for people who do not have a valid medical reason for exemption, from a medical professional, is “likely to cause harm.”

A moot point

On March 21, 2022 — before the board issued its decision in this case — the company amended its vaccine mandate directive, removing the requirement that employees be vaccinated or face unpaid leave.

As a result, both the employer and the province’s Director of Occupational Health and Safety moved to have the worker’s appeal dismissed. There simply was no longer an active issue between the parties, it said.

The worker stuck to his guns, though, arguing the vaccination mandate directive could be modified at any time due to changing pandemic conditions. He wanted a ruling from the board to address whether or not there were OHSA violations by the employer.

The board, though, found there simply was no longer a dispute between the parties. It rejected the argument that this was a recurring issue where a ruling would assist in future cases.

“In fact, any future similar situation that may arise would likely be based on current day epidemiology and scientific data as to risk and benefits of various public health and workplace safety mitigation measures,” it said.

If it did issue an order in this case in favour of the worker, it simply would have been telling the employer not to apply a vaccine directive, which was no longer in effect, to the worker.

“The board does not find that a wise use of tribunal resources,’ it said.

It declined to react to a “hypothetical set of circumstances in advance,” stating that would amount to “impermissible lawmaking in the abstract.”

With no ongoing tangible dispute between the parties, the board granted the appeal from the employer and the director to dismiss the appeal as moot.

For more information see Khan v Nova Scotia Lands Inc., 2022 CanLII 93012 (NS LB)

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