In two decisions released last week, labour arbitrators ruled upon the enforceability of workplace COVID-19 vaccination policies. In one decision, the arbitrator upheld the employer’s policy as reasonable. In another, an employer’s vaccination policy was found to be unreasonable. These decisions provide a useful indication of how decision-makers are likely to approach the adjudication of workplace COVID-19 vaccination policies going forward.
UFCW Local 333 and Paragon Protection Ltd.
On November 9, 2021, Arbitrator von Veh, Q.C. dismissed a policy grievance brought by a union against an employer’s COVID-19 vaccination policy. In a welcome ruling for employers, Arbitrator von Veh concluded that the policy was reasonable, enforceable, and compliant with the Ontario Human Rights Code.
The union that brought the grievance, UFCW Local 333 (the “Union”), represents approximately 4400 security guards employed by Paragon Protection Ltd. (the “Company”). The Company’s employees worked at roughly 450 client sites in Ontario. Many of these sites had implemented (or were in the process of implementing) requirements that contractors be fully vaccinated in order to continue working on the client’s premises.
On September 3, 2021, the Company introduced its own COVID-19 vaccination policy (the “Policy”). The Policy required employees to be fully vaccinated by October 31, 2021, subject to applicable exemptions under the Ontario Human Rights Code. Employees were required to provide a signed declaration confirming their status as fully vaccinated. Employees could also request accommodation by way of submitting a “COVID-19 Vaccination Exemption Request Form.” The Policy stated that violating the Policy could be grounds for disciplinary action up to and including termination for just cause.
The Union’s Grievance
The Union filed a grievance, arguing (among other things) that the Policy contravened the collective agreement and the Ontario Human Rights Code. It argued that the Policy did not comply with the often-cited “KVP criteria” for rules which are unilaterally introduced by an employer, including the requirement that such rules must not be unreasonable or inconsistent, must be clear and unequivocal, must be brought to the attention of employees, and must be consistent with the collective agreement. The Union also contended that the Policy contravened the Health Care Consent Act, 1996, which mandates that no “treatment” may be provided without consent and that such treatment must be administered by a “health practitioner.”
The Union also submitted that the Policy contradicted an arbitration award from 2018, which had found that a hospital’s policy requiring health care workers to receive an influenza vaccine, or wear a mask in areas where patients were present, was not enforceable.
The Arbitrator’s Findings
Ultimately, Arbitrator von Veh found that the Policy was reasonable and enforceable for the following reasons:
- The Policy complied with the Ontario Human Rights Code as it struck a balance in respecting the rights of employees who did not wish to be vaccinated while respecting a safe workplace for other employees, the Company’s clients, and members of the public with whom employees interacted;
- In Arbitrator von Veh’s view, the “personal subjective perceptions of employees … cannot override and displace available scientific considerations;”
- The Policy complied with the Occupational Health and Safety Act, which requires an employer to take every precaution reasonable in the circumstances for the protection of its workers. By implementing the Policy, the Company ensured that it had taken such precautions;
- The Policy complied with applicable terms of the collective agreement and the Company had acted reasonably in implementing the Policy;
- The Health Care Consent Act, 1996 was inapplicable to this case; and
- The 2018 arbitration award cited by the Union could be distinguished from the matter before Arbitrator von Veh on the basis that the decision did not deal with pandemic conditions.
Accordingly, the Union’s policy grievance was dismissed.
Electrical Safety Authority and Power Workers’ Union
Just two days later, on November 11, 2021, Arbitrator Stout released a decision finding that another employer’s COVID-19 vaccination policy was unreasonable and unenforceable to the extent that employees could be disciplined, discharged, or placed on an unpaid leave of absence for failing to get fully vaccinated. However, he found that it was reasonable for the employer to require employees to disclose their vaccination status to the employer.
The employer had previously implemented a voluntary vaccination disclosure and testing policy to address the risk of COVID-19 in the workplace. Pursuant to that policy, the vast majority (88.4%) of employees were vaccinated and had disclosed their status to the employer.
The employer subsequently implemented a mandatory COVID-19 vaccination policy that required all employees to get vaccinated. The new policy provided that failure to comply could result in employees being placed on unpaid leaves of absence or having their employment terminated. Nothing in the collective agreement specifically addressed the issue of vaccination.
The Union’s Grievance
The union contended that the revised mandatory vaccination policy was unreasonable and a significant over-reaching exercise of management rights, which violated the collective agreement as well as employees’ privacy rights and right to bodily integrity.
The employer’s position was that the policy was a reasonable exercise of management rights, which fulfilled its legal obligation to take every reasonable precaution to protect workers and the public.
The Arbitrator’s Decision
Arbitrator Stout acknowledged that “context is extremely import[ant] when assessing the reasonableness of a workplace rule or policy that may infringe upon an individual employee’s rights.” In some workplace settings, where the risks of infection are high and there are vulnerable populations (i.e., people who are sick or the elderly or children who cannot be vaccinated), then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations. In contrast, in workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a less intrusive alternative may be appropriate.
The workplace in question had no history of outbreaks or infections. The vast majority of the work undertaken by employees was done remotely, and many employees had a right to continue working remotely under the collective agreement. A significant majority of employees were already vaccinated. In the circumstances, when it was not a requirement of being hired and where a reasonable alternative was available (i.e., a “vaccinate or test” policy), Arbitrator Stout held that disciplining or discharging an employee for failing to be vaccinated was unjust. However, he did not foreclose the possibility that safety concerns could, in future, require the employer to place employees on administrative leave without pay.
The employer was directed to amend the vaccination policy to make it clear that employees would not be disciplined or discharged for failing to get vaccinated, and to provide a testing option to unvaccinated employees.
Notably, Arbitrator Stout emphasized that, “this award should not be taken as a vindication for those who choose, without a legal exemption, not to get vaccinated. Those individuals are in my view misguided and acting against their own and society’s best interests. These individuals may also be placing their ability to earn a living in jeopardy.”
Key Takeaways for Employers
These cases appear to be the first arbitration awards in Ontario which address the enforceability of workplace COVID-19 vaccination policies.
Despite reaching different conclusions about the enforceability of the policies at issue, the analysis conducted by each arbitrator is largely compatible. In Paragon Protection, employees performed their work at third-party sites, and the collective agreement contained specific language about employee vaccinations. In contrast, in Electrical Safety Authority, the conditions of the specific workplace did not warrant the implementation of a mandatory vaccination policy because less intrusive means were available to manage applicable safety concerns.
These decisions emphasize that the question of whether an employer’s COVID-19 vaccination policy is enforceable will be a fact-dependent analysis which may turn on, among other things, the specific wording of collective agreement provisions, the type of work performed by employees, the history of outbreaks at the workplace, and the wording of the vaccination policy.