Health system employees sue province over COVID-19 workplace mandates

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This article was published 28/06/2022 (813 days ago), so information in it may no longer be current.

Requiring Manitoba health-care workers to provide proof of vaccination against COVID-19 or negative test results violated their rights and amounted to “assault and battery,” according to a lawsuit filed by 16 unvaccinated Manitoba health system employees against the chief provincial public health officer, their employer and the province.

The statement of claim filed in Court of Queen’s Bench says the workers want $500,000 each for violating their rights, $500,000 for aggravated damages, $500,000 for punitive and exemplary damages, and up to $1 million each for “intentional infliction of mental distress and assault and battery.”

The Oct. 18 policy imposed by Shared Health required employees, who wouldn’t prove they’re fully vaccinated or provide proof of a negative COVID-19 test, to go on unpaid leave.

A Shared Health spokesman said at the time the policy was an “important additional protection for patients, residents and clients — some of whom are at greater risk of hospitalization and even death from COVID-19.” More than 95 per cent of Manitoba’s 42,000 direct-care workers disclosed they were fully vaccinated.

The requirement to provide proof of vaccination or a negative COVID-19 test was dropped on March 1 because hospitalizations and intensive care unit admissions were on a downward trajectory, Health Minister Audrey Gordon said at a Feb. 25 news conference.

The court documents filed on June 23 show nine of the plaintiffs work in the Winnipeg health region.

According to the lawsuit, nurses Shereen White and Harry Reich underwent rapid tests “under duress” to avoid being placed on an unpaid leave of absence; nurses Margaret Rempel, Trevor Broesky, Kim Loewen, Kayla Abrahams and Samantha Powell were placed on unpaid leave; nurse Luba Klovatch underwent rapid tests “under duress;” and licensed practical nurse Michelle Malkoske was told that she would no longer be permitted to pick up shifts.

Four of the plaintiffs work in Southern Health: health-care aide Ashley Reimer; nurses Heidi Harder and Daren Walker; and general duty technologist Shana Janzen were put on unpaid leave.

Two plaintiffs work in Prairie Mountain: home-care attendant Robin Burnett-Klyzub and psychiatric nurse Amy Johnas were placed on unpaid leave.

One plaintiff, health-care aide Lisa Blatz, works in the Interlake-Eastern region.

“I think it will be challenging for them to win, given how deferential courts have been to government in the pandemic,” University of Manitoba assistant law Prof. Gerard Kennedy said Wednesday.

Last year, seven churches in Manitoba sued chief provincial public health officer Dr. Brent Roussin, deputy chief Dr. Jazz Atwal and the province over public health orders impacting religious services.

While the rules did restrict the freedoms of religious expression and peaceful assembly, they didn’t infringe upon charter rights to liberty and equality and were justified as a pandemic response based on credible science, Court of Queen’s Bench Chief Justice Glenn Joyal ruled in October.

The judge dismissed legal challenges brought by the churches that argued the province’s public health orders unfairly violated their rights and were improperly enacted into law.

The province may have a similar defence for its get vaxxed, get tested or get out policy, Kennedy said.

“The province can raise the idea that it needed to do this to thwart the spread of COVID-19 and the burden on the health-care system,” he said.

By lifting the policy on March 1, public health showed it was responding to the changing situation, said Kennedy.

“That supports the province’s claim that it was acting on the facts, that it is responding to evolving situations and science, rather than acting in a cavalier way.”

The provincial government declined to comment Wednesday. A spokesman said it will be filing a statement of defence.

The plaintiffs have asked for 25 days to be set aside for a trial, court documents show.

The law firm representing the group is based in Cold Lake, Alta. No one from the law firm responded to a request for comment.

The Justice Centre for Constitutional Freedoms represented the seven Manitoba churches in court and is also based in Alberta.

carol.sanders@freepress.mb.ca