Plow driver mandated out of a job
Man upset his replacement also unvaccinated
He’d been off the job without pay for eight weeks when he found out one of his replacements was also unvaccinated.
It hit him like a punch in the gut.
The Annapolis Valley snow plow operator, who we’ll call Jim, asked not to be named out of fear of getting fired. At the end of November Jim and 23 plow operators employed by the province were put on unpaid leave due to their vaccination status, according to the Nova Scotia Department of Public Works.
They did not go quietly. The province’s directive requiring government employees to be vaccinated came down last fall and gave workers six weeks to get their first shot. Jim and his counterparts belong to Canadian Union of Public Employees (CUPE). Nine days before the vaccination deadline, 21 Nova Scotia CUPE members signed a letter to the union’s national president and Nova Scotia president looking for answers.
They wanted the union to ask their government employers why they were being taken off the job. The document the union sent contained five requests. They included that there be a risk assessment specific to their job and they be shown why any potential risks couldn’t be dealt with by masking and rapid testing rather than mandatory vaccination.
None of those questions were answered. Jim and the other plow operators have not worked a day this winter. In the Valley region alone, six operators have been off the job, said Jim.
The shortfall left the province scrambling for contractors to fill the void. At the end of January he found out at least one of his replacements was unvaccinated.
The Chronicle Herald spoke to the replacement operator who said he’s an employee of Dexter Construction and lives in the Valley. He confirmed he’s unvaccinated and that he had been called in because the company was struggling to keep up with the extra workload. He asked not to be identified out of fear of losing his job. He said he’s speaking up because he believes Jim should be able to do his job, vaccinated or not. Because Jim works by himself operating a plow he poses little risk to anyone, he said.
“It’s not right that the government has taken his job away and it doesn’t make sense,” he said. “It’s a person’s right to choose whether they want to be vaccinated.”
Finding out that his replacement was also unvaccinated was the last straw for Jim. For nine years he’s been a fulltime grader and snow plow operator for the province. He believes he should be working and the Nova Scotia government failed in its responsibility to him and his fellow plow drivers to justify why they can’t.
According to the province’s rules, the replacement driver should never have been called in. Nova Scotia has another policy requiring most government contract workers to also be vaccinated. There are few exceptions, including those who provide services virtually with no requirement to interact with provincial employees or the public. But snow clearing is not one of them.
The mandatory vaccination policy for suppliers and contractors also came into effect on Nov. 30. It required contractors to sign a declaration form vouching that they and their employees had at least one shot and would get a second by Feb. 9.
The Herald made several attempts to reach Dexter Construction. The company did not respond to questions about whether it employed any unvaccinated snow plow drivers on Nova Scotia government contracts and whether the company has a vaccine policy.
The Herald asked the Department of Public Works about whether it knew about unvaccinated drivers at Dexter Construction but it did not answer the question. Department spokeswoman Deborah Bayer said the company as well as other winter maintenance contractors have completed the required declaration forms attesting employees working on government contracts are vaccinated. The Herald asked for a copy of the form completed by Dexter Construction but the document was not provided.
Earlier this month Jim filed a grievance with his union arguing the province is unreasonably imposing on his charter rights, in particular his right to life, liberty, and security of the person. He said CUPE is prepared to go to bat for him and put his human rights argument to the province. The Nova Scotia Human Rights Commission states that an employer would need to demonstrate the requirement for a vaccination is valid based on the characteristics of the workplace.
“Some of these may include close contact in the workplace, working with vulnerable populations, and if they can show it is a reasonable measure to implement for the protection of the employees and clientele.”
None of these examples apply in Jim’s case, he said. He’s willing to mitigate whatever risk he does pose to the public while on the job, whether by wearing a mask on the job or getting tested regularly.
“I think that's fair. I work 12 hours alone in my plow with no public interaction at all," said Jim. “I have my own personal bay where the plow is stored and I share it with just one other plow operator.”
The Herald contacted CUPE Nova Scotia president Nan McFadgen but she would not comment.
Wayne MacKay, a Dalhousie University law professor, said he supports mandating vaccines for those in contact with the public but on the face of it Jim would have a compelling argument that his charter rights are being unfairly limited.
“If you’re not exposing other people to risk I do think that the essential choice about vaccination should be yours," said MacKay, a charter and constitutional law expert. "If you can establish that you’re operating effectively and efficiently without coming into contact with the public the policy may not be defensible or a reasonable thing to apply to him.”
MacKay said it’s on the government to justify limiting Jim’s rights. The government’s mandatory vaccination policy strikes at the heart of its obligation to balance people’s individual rights and the collective rights to health and safety. MacKay said the government needs to be sure the policy meets that test.
“There’s so much fatigue on every level about COVID-19 and so it’s especially important that the government is constantly reevaluating whether these limits need to be as extensive as they are."
The Herald asked Public Works Minister Kim Masland to explain why the mandatory vaccination policy applies to plow operators but she did not respond.
Shortly after the policy was announced last fall, CUPE Atlantic regional office sent a letter to members offering its perspective on the directive. The union’s opinion then was that it did not infringe on the rights of its members. The letter also stated that policy came from a directive from Dr. Robert Strang, the province’s chief medical officer of health, “for employees to be vaccinated against COVID-19.”
The Herald also attempted to reach Strang for an explanation of the rationale for requiring plow operators to be vaccinated but he would not comment.
“The vaccine mandate isn’t Dr. Strang’s policy,” said Marla MacInnis, a spokesperson for the Department of Health and Wellness. “It belongs to the Public Service Commission.”