There has been a lot of debate and also uncertainty for employees regarding how far vaccination policies can go. Some early cases have been decided in the unionized context providing useful insights and analysis. In the past month, three Ontario arbitration decisions have evaluated the reasonableness and enforceability of employers’ vaccination policies with varying results:
- United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. – The employer (a security company) implemented a policy requiring employees to be fully vaccinated against COVID-19 or face serious consequences, subject to valid exemption requests. The union grieved the policy as violating the collective agreement and the Human Rights Code (the “Code”). The employer took the position that, as the majority of its clients had implemented similar vaccination policies, it had to introduce the vaccination requirement as an operational necessity and to protect the health and safety of its employees and clients.
Arbitrator Von Veh upheld the policy, highlighting that the policy struck a balance between the rights of unvaccinated employees and public health and safety and that it constituted part of the employer’s obligation under the Occupational Health and Safety Act to take every precaution reasonable to protect health and safety. Notably, in this case, the collective agreement contained a provision requiring that employees agree to receive vaccination or inoculation if required by law, or imposed as a condition of access to a client site, which likely influenced the decision.
- Electrical Safety Authority v. The Power Workers Union – The union grieved a change to the employer’s position on vaccination when it introduced a mandatory vaccination policy after previously having a voluntary vaccination policy in place, which permitted unvaccinated employees to undergo regular COVID-19 testing. Under the new policy, employees who did not get vaccinated were subject to discipline, discharge, or administrative leave without pay.
Arbitrator Stout upheld the union’s grievance, finding that the policy was unreasonable. As there was no collective agreement provision, past practice, or legislated requirement concerning vaccination, Arbitrator Stout assessed whether the employer could unilaterally impose the policy. As the employees in this workplace were continuing to work remotely, there was no specific problem or significant risk of outbreaks, and there was no significant interference with the employer’s operations, Arbitrator Stout found that the mandatory vaccination policy was unreasonable and that the previous voluntary policy was sufficient to address the employer’s concerns.
- Ontario Power Generation v. The Power Workers Union – This arbitration decision considered specific aspects of a vaccination policy that were remitted to arbitration. The three issues addressed were the cost of testing for unvaccinated employees; unpaid leaves of absence followed by termination for employees refusing to undergo COVID-19 testing; and gym access for unvaccinated employees.
Arbitrator Murray found that the interests of both the employer and employees were appropriately balanced if the employer covered the cost of the test for employees required to undergo COVID-19 testing. However, the employer was not required to compensate employees for the time required to take the test. He also upheld the unpaid leaves of absence followed by termination for employees refusing to undergo regular testing, noting that the test had been recognized as safe and effective by the appropriate authorities and that employees would be given 6 weeks on a leave of absence to decide to agree to testing prior to being terminated. Lastly, Arbitrator Murray upheld the employer’s policy that only vaccinated employees were able to use an indoor gym, referring to the Ontario government’s similar requirement that patrons of gyms be fully vaccinated.
Although the foregoing decisions are arbitral decisions and are not binding, and it remains to be seen how courts will address similar issues, they still convey valuable information to employers developing, implementing, and revising their own vaccination policies. As can be seen from the rulings above, decision-makers will evaluate each workplace individually, seeking to balance the particular interests and risks as between employer and employee in their specific working conditions. Where alternative methods will address the employer’s concerns while respecting employee interests, a mandatory vaccination policy will not always be reasonable. Additionally, even where a mandatory vaccination policy may be appropriate, employers will have to carefully consider how to manage other aspects of the policy, such as the cost of COVID-19 testing and impact on employees’ other rights and obligations in the workplace.
For assistance with your organizations COVID-19 vaccination policy or other related inquiries, please contact Madeeha Hashmi at [email protected].