From: “Brock University Faculty Association (BUFA)” <[email protected]>
Date: Thursday, January 27, 2022
Subject: Update: Resumption of On-Campus Activities
To all BUFA members,
On January 14th the Executive Committee of BUFA sent a message to the membership articulating the position that the Administration’s return-to-campus plan was premature, and posing a set of questions of the Administration with regard to its rationale for the current plan. We have since met with Interim President Wells to discuss these questions and the return-to-campus plan. The answers provided did not ameliorate the Executive’s concerns regarding the safety of the current plan to return to on-campus learning.
In a meeting with Interim President Wells and Human Resources on January 19th, BUFA was told that the University had no plans to update its vaccination policy, had no plans to update its masking policy, nor would it implement physical distancing requirements. Despite the rationale to stay online until January 31st to allow members of the Brock Community to receive a booster shot, the University confirmed that it has no reliable record of the number of its community who have received a booster. Notably, the most recent Statistics Canada data shows that as of January 15th fewer than 40% of eligible Ontarians had received one. On January 26th, the University updated its masking policy to establish that cloth masks are no longer permitted and that surgical masks, minimally, must be worn. The BUFA Executive does not accept that this change to the masking policy is sufficient.
In light of all the above, the BUFA Executive believes that the University has failed to respond to the specific context that the omicron variant has created.
Like everyone, the BUFA Executive is anxious for a return to campus teaching and learning. However, we are not convinced that the current plan takes sufficient safety precautions for the Administration to meets its legal obligation under section 25 of the Occupational Health and Safety Act, to “take every precaution reasonable in the circumstances for the protection of a worker” (s 25 (2) (h)), which legislation is also expressly incorporated into article 31 of our collective agreement. In particular, the Employer has failed to meet its obligations to protect workers from the spread of and exposure to the Omicron variant of COVID-19 by:
- Failing to update its vaccine mandate to require boosters and refusing to allow emergency remote instruction to continue in order to allow members of the Brock community to obtain booster shots;
- Failing to update its masking policy to reflect the most current expert advice on effective masking;
- Failing to provide BUFA members and members of the Brock community with KN95 or N95 masks;
- Failing to require physical distancing in the context of the greater transmissibility of the Omicron variant and the lesser efficacy of the previous 1-dose or 2-dose vaccine series against this variant.
The BUFA Executive will continue to engage with the Administration to develop a return-to-campus plan that is consistent with the letter and spirit of its obligations to provide a safe work environment and thereby a safe environment for the entire campus community.
We need your help to try to hold the Administration to account. Please let us know about the on-the-ground difficulties that the return to campus poses for you, in particular, your experience with student absences, difficulty in accommodating or addressing student absences, your own health needs and if you are asked by the Employer to pivot online for any reason.
Please find responses to frequently asked questions below.
Q: What do I do if I develop one or more COVID-like symptoms but am not sure if it is COVID?
A: Currently, the Niagara Public Health guidelines specify that if you develop COVID-like symptoms you should assume you have COVID, and self-isolate for at least 5 days. PCR testing is highly restricted, and therefore most people will be ineligible to confirm whether or not they have COVID. According to Niagara Public Health, a self-administered rapid antigen test that comes back negative does not get you around the need to self-isolate.
Please see the following link: COVID-19 Testing and Your Test Results – Niagara Region, Ontario
What that means is that if you have an on-campus class to teach during that 5-day self-isolation period, you will be unable to come to campus. It is BUFA’s position that such isolation requires the use of one of the 105 negotiated paid sick-days as per article 34 of the collective agreement, to excuse you from attending to your on-campus duties. What that means is that you should not offer, be asked, nor permitted to pivot online for that class. The Employer and BUFA have long agreed that mode-of-delivery is not at the behest of the individual instructor or the Employer. It is for this reason that members who have expressed a desire to continue to teach online during this past academic year despite the mode of course delivery being on-campus, have been consistently denied. That being the case, it is BUFA’s position that a member who must self-isolate cannot be asked nor permitted to pivot online on a week-by-week, case-by-case, basis, unless and until the Parties have entered into a formal agreement to do so in the current context.
Q: If I don’t want to teach on campus out of concerns related to COVID-19, can I teach remotely?
A: Members are obligated to deliver their courses in the format for which they were scheduled. A member with a bona fide human rights-based need for accommodation may override the original decision regarding mode of delivery. In such cases, a change to mode of delivery may be appropriate to meet obligations under the Human Rights Code.
Q: What kinds of things would qualify as a bona fide human-rights-based ground for accommodation?
A: In the current climate, members have expressed concern around being on campus for reasons related to COVID-19. In initial discussions regarding the pandemic in early 2020, the Employer agreed with BUFA’s assertion that a low bar should be set with regard to what it would reasonably consider a human-rights based ground for accommodation. For example, living with someone who is immunocompromised was posited as a ground that would be considered. So too if the member themselves were immunocompromised. We expect that the Employer will continue to view such as a reasonable ground to grant an accommodation.
Q: If I request an accommodation and the Employer agrees that I have a bona fide basis, does this mean that I will automatically be permitted to teach remotely?
A: Not necessarily. One is entitled to an accommodation that meets the circumstances. If it is deemed that you have a bona fide basis for an accommodation, but a individualized plan could be devised wherein you could safely teach a course on campus then that might be deemed sufficient accommodation.
Q: What if I have a student who requests to access an online version of the course because they cannot safely come to campus or are afraid to come to campus, do I have to teach them remotely?
A: No. Members are not obligated to provide an alternate delivery at a student’s request. Students who have bona fide accommodation needs must go through the Student Accessibility Services office for assessment, and members are obligated to then engage in the accommodations process, just as happened previous to the pandemic. Also, as previous to the pandemic, members will not be required to develop an alternative mode of delivery as an accommodation. Interim President Wells committed to addressing this issue with the Student Accessibility Services staff to make clear that online delivery will not be construed as an appropriate accommodation for what is otherwise an on-campus delivery mode.
Q: Can I refuse to teach on campus or refuse to attend campus?
A: A mechanism under the OHSA is the right to refuse unsafe work. Generally, “a worker may refuse to work or do particular work where he or she has reason to believe that…the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself.” s. 43.
The rights that members have in work refusals are individual, they are not collective. Any particular member who is going to engage in the work refusal process has to do so on their own set of facts. Work refusals are a two-stage process. This process is set out here:
Guide to the Occupational Health and Safety Act: Part V: Right to refuse or to stop work where health and safety in danger | Ontario.ca
Under s. 50 of the OHSA, members are protected against reprisals. Members who enforce these rights under the OHSA should not be disciplined or have any negative response from the Administration in any way.
Q: Are BUFA members permitted to engage in a collective work refusal if we feel unsafe coming on campus to work?
A: No. A collective work refusal (either partial or total) as a means of addressing safety concerns with Brock’s plans to resume on-campus activities, would qualify as an unlawful strike under the terms of the Ontario Labour Relations Act. There are specific procedural requirements of a lawful strike, including that for a strike to be lawful it can only occur after the expiration of a collective agreement.
Michelle Webber, Ph.D.
President, Brock University Faculty Association
Professor, Department of Sociology