HR Pro Provides Tips for People Facing Termination for Refusing DNA-Alteration
September 24, 2021
My name is Sheri and I have been working as a Human Resources professional for about 12 years. In seeing all of the posts recently about folks fearing for their jobs, I feel compelled to help. I thought it might be easier to write my own post rather than trying to comment on everyone else’s. This is a long one, consider copying & pasting into a word doc for easy reading.
If you or someone you love are being told that you must get v’d in order to keep a job, read on for some (hopefully) helpful information. I am not by any means a lawyer, and every situation is unique. But generally, these guidelines below can help get you started.
First, let me start by saying there is a very good reason why these mandates were not imposed on employees… and quite simply, it’s because the gov doesn’t have the authority to implement company policies. Oh sure, they can tell businesses that must have a policy ABOUT something, (like you must have a drug and alcohol policy, according to OHS regulations) but they can’t tell businesses what the policy needs to SAY or what to mandate in their workplace. In their announcements, it was stated by our lovely health authorities that businesses can decide on their own policies and should do their “due diligence”. This is because a HUGE amount of businesses (if not all) would be challenged to legally mandate a v. Let me explain…
In order to make something discriminatory (like this v) a “condition of employment”, an employer needs to be able to prove that it is a “bona fide occupational requirement” (BFOR). Google that term. The Supreme Court of Canada has clarified that there is a “test” or set of standards that must be met in order to qualify something as a BFOR;
1. It needs to be directly related to job performance (you need to meet this criteria in order to safely perform critical aspects of your job) 2. It must be adopted in good faith (it wasn’t intended to be discriminatory – like “we don’t hire women because they’re not strong enough to lift boxes in the warehouse”) 3. It’s reasonably necessary (this is the big one, and it basically this means there is no other reasonable or less invasive way to do the job), and employees who feel discriminated cannot be accommodated or it would cause “undue hardship” to the business. I’ll explain this more below.
Here is a great article from go2hr that explains this in simple terms; https://www.go2hr.ca/legal/human-rights-code/bona-fide-occupational-requirement
So how does an employer determine if the v is needed in order to safely perform a job? Well they better do a very thorough and well documented “Job Analysis” – Google that too. A job analysis would require an employer to break down every job task and assess the risk level. The risk must be “measurable” or “quantifiable”. So simply saying that it’s a risk to the public to be un-v’d would probably not fly. Your employer would need to show this. With stats. They would then need to show that the risk cannot be mitigated by other measures (ie, masks, barriers, social distancing, working from home, etc.)
If my employer came to me and said I must get v’d by a certain date, or face disciplinary action (up to and including termination) then I would definitely ask for that in writing, and I would request that they also provide a copy of their documented Job Analysis with that letter. I would cary on working (business as usual) until I received that information.
Once I receive my written notice, and job analysis, I would ask my employer to clarify for me (in writing) which aspects of my position are dangerous if I am not v’d. I would then ask them to explain (in writing) what accommodations were explored, and why they determined that those accommodations would be considered “undue hardship”.
Undue hardship is not an easy thing to prove as it is – you can’t just say something like “it costs more money for me to accommodate you”… no, it needs to be bigger than that.