November 16, 2021by Israel Foulon LLP
Two grievance decisions have been recently released regarding mandatory vaccination policies in unionized workplaces. In United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd., Arbitrator Von Veh determined that the employer’s mandatory COVID-19 vaccination policy was reasonable and in accordance with the employers’ obligations under the Occupational Health and Safety Act (the “OHSA”), the Ontario Human Rights Code (the “Code”), and the Collective Agreement. However, in Electrical Safety Authority v. Power Workers Union, Arbitrator Stout determined that the employer’s mandatory vaccination policy was unreasonable, breached the OHSA, and the Collective Agreement.
It is important to note that these decisions were fact specific, and hinged on the language contained in the Collective Agreements, the specific nature of the businesses, as well as the employer’s historical management of the COVID-19 pandemic in the workplace.
United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd.
Paragon Protection Ltd. (“Paragon”), a security company, implemented a mandatory vaccination policy (subject to exemptions under the Code) on September 3, 2021 (the “Policy”), as the majority of Paragon’s clients had implemented their own mandatory vaccination policies for their employees and contractors, including security guards. The Policy required that all staff be fully vaccinated against COVID-19 in order to work or remain working on their client’s sites by October 31, 2021. The Policy included an exemption section that stated that employees with an approved Code exemption could be placed at an alternative site, be required to complete additional COVID-19 testing, or be placed on an unpaid leave or be subject to further requirements on a case-by-case basis. Paragon communicated that all employees would be required to submit a vaccination status declaration form in compliance with the Policy prior to the date it went into effect.
The Union commenced a grievance and claimed that the Policy violated the Code, the Labour Relations Act, 1995, and the Collective Agreement. The Union also submitted that their members were concerned about the additional health issues resulting from the vaccinations, and stated that mandating vaccinations was a breach of the Health Care Consent Act.
The Arbitrator examined the Policy to determine if it was reasonably within Paragon’s management rights, in accordance with the terms set out in the Collective Agreement. In particular, the Arbitrator referenced Article 24.05 of the Collective Agreement, which stated that if an employee is assigned to a site where specific vaccination is required by law or where the conditions of contractors having access to the site stipulates specific vaccination and inoculation, the employee must agree to receive such vaccination or inoculation (this language was negotiated into the Collective Agreement prior to COVID-19). It went on to state that where an employee refuses to receive the vaccination or inoculation for any reason, they will be reassigned.
The Arbitrator’s Findings
The Arbitrator determined the Policy was reasonable and enforceable and in line with the Code and OHSA, as well as the Collective Agreement. Most importantly, the Arbitrator determined that:
- The Policy was found to strike a balance that respected the rights of employees who have not or do not wish to be vaccinated, while respecting a safe workplace for staff, Paragon’s clients and members of the public with whom the security guards interact.
- The Policy met the requirement to take every reasonable precaution to protect the health and safety of the employees and the workplace under the OHSA.
- The Arbitrator considered the Human Rights Commission’s policy statements regarding individuals who refuse to be vaccinated due to personal preference and stated that “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.” The Arbitrator agreed that the Policy was in line with this guidance as long as the Code exemptions were permitted.
- The Policy was in line with Article 24.05 of the Collective Agreement requiring employees to be vaccinated, and was essentially incorporated into the Policy.
- The Health Care Consent Act was not relevant in the circumstances.
Electrical Safety Authority v. Power Workers Union
Prior to October 5, 2021, Electrical Safety Authority (“ESA”) had a voluntary COVID-19 vaccination or testing policy in place, which allowed employees who did not disclose their vaccination status to be tested for COVID-19 on a regular basis. On October 5, 2021, the ESA implemented a mandatory vaccination policy (the “Policy”) which required all employees to be fully vaccinated against COVID-19 by a certain date. Otherwise, they would be disciplined, terminated, or placed on an unpaid administrative leave until they demonstrated they were fully vaccinated. The Power Workers Union (the “Union”) brought a grievance, arguing that the revised Policy was unreasonable, overreaching, and infringed employees’ right to bodily integrity.
The Arbitrator’s Findings
The Arbitrator noted that he did not want the decision to vindicate those who choose not to be vaccinated, as opposed to those who have valid exemptions under the Code. He specifically noted that those who refuse to be vaccinated without a valid exemption under the Code “are not just endangering their health but may also be placing their employment in jeopardy” (at para 4).
The Arbitrator interpreted the Collective Agreement and the Policy, as well as the nature of the workplace, including the type of work performed, ESA’s outbreak history, and the potential dangers to the workplace and employees if the earlier policy remained in place. The Arbitrator determined that the Policy was unreasonable as it stated that employees would be disciplined, terminated or placed on administrative leave without pay if they were not fully vaccinated against COVID-19. The Arbitrator made his decision based on the specific context and on the facts before him, and determined the following:
- ESA reasonably exercised their management rights in creating the pre-October 5, 2021 policy in accordance with the Collective Agreement and stated that it was reasonable to request that employees confirm their vaccination status and that it could be provided to third-parties with consent.
- ESA did not have a clause regarding mandatory vaccinations in the Collective Agreement and have not required this in the past as a practice.
- Mandatory vaccination policies are necessary in workplaces where the risks are high and there are vulnerable populations, including those who are ill, elderly, or where there are children who cannot be vaccinated in order to protect the relevant individuals.
- In workplaces where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with employers’ operations, then a reasonable less intrusive alternative, such as the earlier version of the policy, may be sufficient.
- The Arbitrator looked at the specific risks of transmitting COVID-19 in the workplace, and commended the ESA on its historically low case count, as well as the fact that the company provides personal protective equipment and most employees work remotely and can continue to perform all of their duties remotely in accordance with the Collective Agreement.
- The Arbitrator noted that there was no evidence of dangers or hazards, or impact on the business that required the implementation of the Policy.
- A real and demonstrated risk or business need must be clear in order to institute a policy requiring employees to disclose their medical information with no alternative. In circumstances where an employee is not fit to perform work or safely enter the workplace, they can be placed on administrative leave.
- Most importantly, at para 39, the Arbitrator stated that “[i]f a health and safety problem arises in the workplace or if the number of unvaccinated employees creates real problems for the ESA’s business that cannot be addressed in any other reasonable way, then the ESA may need to take other measures, including placing unvaccinated employees on administrative leave”
Take Away for Employers
Given the contrasting decisions, it is clear that the reasonableness of implementing a mandatory vaccine policy depends very much on the specific circumstances, taking into account the nature of the workplace, the type of work performed, previous outbreaks, the existence of vulnerable populations, the terms included in the collective agreement (in unionized settings), along with the employer’s obligations under applicable legislation. Employers should be able to demonstrate the specific risks and dangers that may arise in the event that a mandatory vaccination policy is not implemented. In circumstances where employees are working in close proximity and must complete their work at the workplace, it is more likely that a mandatory COVID-19 policy would be considered enforceable. It may also be prudent to add a clause mandating full COVID-19 vaccination as a condition of employment, in certain circumstances.
We anticipate a number of additional decisions coming out on this topic in the near future, which will hopefully provide more clarity. Please contact us to discuss whether a mandatory COVID-19 vaccination policy is applicable and appropriate for your workplace.
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