Danielle Smith's Promise to Amend to the Human Rights Act, Rife with Potential for Unintended Consequences

Danielle Smith's Promise to Amend to the Human Rights Act, Rife with Potential for Unintended Consequences

The beginning

Employers, employees and union representatives navigated vaccine mandates with respect and understanding.?

They took a gentle and incremental approach to each other. Depending on workplace circumstances and public health advice, OH&S and Human rights obligations, some eased into, as required, mandatory proof of vaccination scenarios.?

They applied mandatory proof of vaccination policies, primarily when workers were:

• close to immune comprised or otherwise vulnerable co-workers, clients,?
• in remote-work communal living situations,
• exposed to the general public in indoor spaces,
• essential services, or?
• subject to site conditions where proof of vaccinations was third-party imposed, such as in?healthcare and long-term care facilities,?airport authorities,?hotels,?camps, and?construction sites.

The division

Anti-vaccine protestors started appearing at Justin Trudeau's campaign events, shouting misogynist messages and throwing rocks at the prime minister and his staff. Justin Trudeau responded with extremely divisive name-calling and decided to use this sensitive aspect of the public health response to the pandemic as a wedge issue for his political gain.?

Before this, each political party, separately and together as a group, recommended that Canadians get vaccinated.

As a Human Resources practitioner, I was exacerbated by the division. Before the wedge issue, employees encountered vaccine-hesitant employees. After the wedge issue, employers encountered intransigent defiant employees who were hostile toward vaccines.?

Thank you, Prime Minster -?

The uncertainty

Employers needed to make decisions to protect their employees, clients the public with the information available at the time. Some arbitrators out of the Toronto area issued early, idiotic decisions, creating increased uncertainty. The logic was that by the time employers could gather enough evidence to support the need for the policy; it would have been two months after experiencing and contributing to peak Delta variant numbers.?

The sanity

Fortunately, other arbitrators took a more logical approach. Now, the preponderance of decisions (after the peak pandemic need for certainty) generally supports employers' ability to put in the controls required to protect their employees, clients and the public.

The Opportunism

Several alt-right movements in Canada sought to take advantage of pandemic fatigue and torqued up the vaccine wedge issue via the trucker convoy. Federal conservative politicians found it convenient to align themselves with the protesters to "make it Justin Trudeau's problem." Most provincial politicians, including conservative politicians like Doug Ford, condemned the protests and encouraged constituents to get vaccinated. Political operatives, who already had a bone to pick with Erin O'Tool and Jason Kenney, used the convoy to put a nail in the coffin of their leadership status.?

The Reckoning

Danielle Smith wins the UPC leadership and promises to amend the Human Rights Act to make vaccine choices a protected ground. Issues are abundant with this, such as the rights of others with competing human rights grounds, and occupational and public health and safety obligations.?

To give effect to the promise, however, Danielle Smith will need to make a more significant change to the Human Rights Acts.?

In most cases, mandatory vaccine policies were imposed on employers and, thus, their employees due to the impositions of third-party (non-employer) parties.

The Alberta Human Rights Act applies to "employers", not "persons," in contrast to how it is in BC. For this reason, up until now, non-employers such as site owners, hospital authorities, universities, and airport authorities could not inherit "employer obligations".

For Danielle Smith to affect her election promise, the UCP needs to amend the Human Rights Act to apply to "persons" so that construction owners and property owners can be now named in employment-related human rights complaints. This impacts not just vaccine mandates but site safety rules and alcohol and drug policy rules.

The opportunism of the vaccine wedge is about to create terrible policy in Alberta, with impacts much more far-reaching than vaccine mandates.