Category: Labour Law

Diversity and inclusion, Duty to Accommodate, Employer Policies, Human Rights, Labour Law

Gender Diverse Workers and Work Travel Requirements to the US – Is There a Right to Refuse Travel?

*this blog was written based on information currently available as of February 11, 2025*

In the wake of Donald Trump’s Executive Order on gender, the US secretary of state has ceased issuing passports with a gender-neutral X option. Travel to and from the US with an X identifier hangs in the balance as the state department has not yet commented on whether the gender order will impact travellers with an X identifier.

With approximately 3600 Canadians holding a passport with an X identifier, employment requirements for travel to the United States will no doubt become an issue for employers and employees alike. Not only may crossing the border for work become more difficult for gender diverse folks who don’t have an M or F on their passport, but the United States is becoming increasingly unsafe for those don’t identify with their gender assigned at birth.

Right to Refuse Unsafe Work per WorkSafe BC

In British Columbia, employees have a right and responsibility to refuse work that they reasonably believe to be unsafe. Work can be unsafe when it creates “an undue hazard to the health and safety of any person”. A “hazard” is a “thing or condition that may expose a person to a risk of injury or occupational disease”, including a mental health injury as defined by the Workers Compensation Act. An “undue hazard” is a hazard that is inappropriate, excessive, or disproportionate.

When workers refuse work that they think is unsafe, employers have a duty to follow occupational health and safety laws, including:

  1. Immediately investigating the potentially unsafe work;
  2. If the employer is not convinced that the work is unsafe but the worker continues to feel it is unsafe, assign another worker to do the work;
  3. If the first worker continues to feel the work is unsafe, investigate the work again and allow the worker to be accompanied by a worker representative or another worker of their choice; or
  4. If the parties cannot agree whether the work is safe, refer the matter to WorkSafeBC for further investigation.

An employer must also refrain from retaliation against an employee for raising a safety issue or refusing to do work they feel is unsafe.

Whether travel to the US creates an undue hazard under occupational health and safety laws will be determined based on what a “reasonable person” would believe taking into account relevant and available information. A “reasonable person” is a legal concept that refers to an imagined “average” or “ordinary” person standing in the shoes of the observer and tries to predict how that imagined person would behave in a given scenario. Whether a worker could reasonably believe that travel to the US would pose an undue hazard to their health and safety would likely depend on what a “average” queer or gender diverse worker would believe may expose them to an excessive or disproportionate risk of injury or occupational disease.

This means a gender diverse person may have a right to refuse travel to the United States as part of their work because it is uniquely unsafe for them, even though travel to the United States may be safe for others.

Duty to Accommodate under the Human Rights Code

2SLGBTQIA+ employees, and in particular gender diverse employees, may also be able to refuse to travel to the US based on the BC Human Rights Code’s protection against discrimination regarding employment. If the employee can demonstrate that travelling to the US for work could expose them to a negative impact, and that their sexuality, gender identity, and/or gender expression is factor leading to that negative impact, they may be entitled to a human rights accommodation. Such accommodations could include having the part of their job that requires them to travel to the US removed from their duties or being temporarily transferred to another position that does not require travel to the States, among many other things.

This can be challenging for employers with employees whose job duties specifically require travel to the United States. While in theory, a non-unionized employer may terminate an employee on a without cause basis for being unable to travel to the US, so long as they properly compensate the employee for the without cause termination, such terminations could be discriminatory based on sexuality or gender identity or expression and could result in significant liability for the employer. Such terminations may also be a prohibitive action under the Workers Compensation Act, which prohibits terminations and other negative consequences for employees who raise a safety concern and/or refuse unsafe work.

For these reasons, employers dealing with employees who refuse, for workplace safety or discrimination reasons, to travel to the US for work should be very cautious about terminating or otherwise imposing negative employment consequences on these employees.

As of writing, the Canadian Government has not issued a travel advisory for the United States, despite pressure from 2SLGBTQIA+ advocates to do so. Factors like travel advisories may be important to a worker’s ability to prove travel to the United States is unsafe work.

Much remains unclear as the situation evolves south of the border as of the date of writing on February 11, 2025.  What we do know is that Canadian laws continue to apply to Canadian employers and employees and staying informed about rights and obligations is key.

This blog is not legal advice and only provides general information.  Every situation must be considered on its own facts.

Need legal advice? Contact us [email protected] or 604-535-7063. Our team of employment lawyers in BC and Alberta are ready to answer your questions.

Labour Law

Union Certification 101

Wondering how unions end up representing workers?  In the world of labour relations, union certification is the mechanism that gives labour unions the legal recognition to represent employees. In British Columbia, the process for a union to become certified is set out in the British Columbia Labour Relations Code, which sets guidelines for unionization of a workplace.

What is Union Certification?

Union certification is the legal process for a union to gain the exclusive authority to represent a group of employees within a workplace. Once certified, the union can negotiate on behalf of its members on wages, working conditions, benefits, and other employment-related matters. After a union is certified as bargaining agent, the workers negotiate employment terms collectively through the union rather than individually with their employer. Employment terms are agreed to between the union and employer in a collective agreement. Certification also gives a union the ability to bring forward employee complaints, through a formal process called a “grievance”, when it believes an employer has violated terms of a collective agreement.

What are the Steps to Union Certification in British Columbia?

  1. Building Support: The journey to certification often begins with building support among employees. A union organizing committee usually forms, consisting of interested workers who champion the union’s cause. They work to educate their colleagues on the benefits of union representation and gather support through discussions and meetings.
  2. Gathering Signatures: To initiate the certification process, the union must demonstrate that a significant portion of employees supports its formation. This is typically done by collecting signed membership cards. In British Columbia, the union must gather cards from at least 45% of the employees in the proposed bargaining unit.
  3. Filing an Application: Once enough support is gathered, the union files an application for certification with the British Columbia Labour Relations Board (BCLRB). This application must include details such as a description of the proposed bargaining unit and evidence of the membership cards collected.
  4. Board Review: The BCLRB reviews the application to decide if the union has met the necessary criteria. If the board is satisfied, and there are no objections, the Board will decide the union’s application.

If the union has enough support demonstrated by signed membership cards (more than 55% of the proposed bargaining unit), then the Board may grant the certification without any more steps, this is called single-step certification.

If the union does not have enough support for single step certification but has at least 45% in favour, then the Board may hold a representation vote among employees within the proposed bargaining unit. If a vote is ordered, then a secret ballot vote is conducted to allow employees to vote for or against union representation. For the union to be certified, a majority of votes must be in the union’s favor.

  1. Certification: If the union receives majority support either from the single step process or from the vote, then the BCLRB issues a certification order. This official document grants the union the exclusive authority to represent the employees.
  2. Collective Bargaining: Following certification, the union can begin negotiations with the employer to establish a collective agreement outlining the terms of employment for its members.

Why is it Important to Understand Union Certification?

Being well-informed about the union certification process in British Columbia is key for maintaining healthy labour relations. When a certification drive or application happens, the process moves quickly as the BCLRB deals with certification applications on an expedited basis. Employers only have a short window to raise any objections to the certification application so it is essential to be informed about the certification process and seek guidance from experienced labour lawyers.

This blog is not legal advice and only provides general information.  Every situation must be considered on its own facts.

Need legal advice? Contact us [email protected] or 604-535-7063. Our team of labour lawyers in BC and Alberta are ready to answer your questions.