The recent arbitration decision of Toronto District School Board and CUPE, Local 4400 (Re: PR734 Vaccine Procedure) (the “Decision”) considers the reasonableness of the Toronto District School Board’s (the “TDSB”) COVID-19 vaccination policy while taking into consideration the Omicron variant. It also addresses the question of whether section 7 of the Canadian Charter of Rights […]read more
COVID 19 – Mandatory Vaccine Policies Legally Challenged through Grievance Arbitrations
Mandatory vaccination policies have been implemented by many employers in response to the COVID-19 pandemic. While these policies have been widely accepted by the majority of employees, there are some employees who strongly object to such policies. Some mandatory COVID-19 vaccination policies have been the subject of grievances. Earlier this month, the first two grievance arbitration decisions relating to mandatory COVID-19 vaccination policies were released. In one decision, the mandatory COVID-19 vaccination policy was upheld as being reasonable while in the other decision, the policy was declared unreasonable. Despite what on the surface appear to be conflicts, the decisions are illustrative of the individual assessment that must be undertaken by employers who implement mandatory vaccination policies.
United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd
In United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd (unreported, 9 November 2021, Von Veh) (ON Arb), the Company had implemented a policy (the “Policy”) on September 3, 2021 which required its employees to be fully vaccinated by October 31, 2021, subject to valid exemptions under the Human Rights Code. The Union filed a grievance alleging the Policy breached the collective agreement, the Labour Relations Act and the Human Rights Code. The Arbitrator carefully considered the Policy; the Ontario Human Rights Commission Policy statement on COVID-19 vaccine mandates and proof of vaccine certificates; the Directive issued by the Ontario Chief Medical Officer of Health; information regarding the risks of receiving the vaccine; and the nature of the Company’s operations, among other things. The Arbitrator found the following:
- The company is a security company employing 4,400 security guards and providing services to 450 client sites in Ontario;
- The majority of the clients served by the company have their own mandatory vaccine requirements in place that require contractors who perform work on site, such as the company, to be fully vaccinated against COVID-19;
- The Policy put in place by the company included an ability for employees to be granted an exemption on the basis of a ground protected by the Human Rights Code;
- The Policy was in accordance with the Employer’s obligation under the Occupational Health and Safety Act to take every precaution reasonable to protect workers;
- The collective agreement included a provision which provided that employees assigned to a site which required specific vaccinations agreed to receive a vaccination “where specific vaccination and/or inoculation is required by law or where the conditions of contractors having access to the site stipulates specific vaccination and inoculation requirement”.
The Arbitrator held that the Policy was reasonable, enforceable, and compliant with both the Ontario Human Rights Code and Occupational Health and Safety Act. The Policy struck a balance in providing a safe workplace for employees, clients, and members of the public. This is the first decision that upholds a mandatory vaccination policy as reasonable and enforceable.
Electrical Safety Authority v Power Workers’ Union
In Electrical Safety Authority v Power Workers’ Union (unreported, 11 November 2021, Stout) (ON Arb) the Company had implemented a policy on October 5, 2021 (the “Mandatory Vaccination Policy”) which required its employees to be fully vaccinated, subject to valid exemptions under the Human Rights Code. Prior to October 5, 2021, the Company had a voluntary vaccination and testing policy in place which permitted employees who did not voluntarily disclose their vaccination status to be tested for COVID-19 on a regular basis. The Union filed a grievance alleging the Mandatory Vaccination Policy was unreasonable and violated the collective agreement as well as employees’ privacy rights. The Arbitrator considered the circumstances of the specific workplace and found the following:
- The company had no COVID outbreaks in the workplace and only seven (7) out of the more than over 400 employees had contracted COVID-19 since the start of the pandemic. Of the seven (7) employees who contracted COVID-19, only two (2) employees contracted the virus in the workplace. This occurred in early 2021 before the COVID-19 vaccine was widely available;
- The company had a high percentage of employees (88.4%) who had been voluntarily vaccinated;
- There was no specific provision in the collective agreement which addressed vaccinations;
- The company had not previously required employees to be vaccinated;
- The company’s employees conducted a majority of their work remotely;
- Where an employee was required to travel or visit a third-party location which had a vaccine requirement in place, the employer was able to send a vaccinated employee to perform the work;
- There was no evidence that the number of unvaccinated employees had created real problems for the company’s business;
- The company did not provide any evidence as to why the procedures in place; namely, the testing of employees who had not provided proof of vaccination and the voluntary disclosure of vaccination status by employees, was not adequate to protect the health and safety of those in the workplace.
The Arbitrator found that the employer’s mandatory vaccination policy was not a reasonable exercise of management rights under the collective agreement. The employer had not demonstrated why the company’s existing policy of disclosing vaccination status and regularly testing those employees who did not provide proof of vaccination was not a reasonable alternative. The Arbitrator found that the company’s legitimate health and safety concerns did not “at this point” justify imposing the Mandatory Vaccination Policy. However, the Arbitrator was careful to note that the circumstances raised by the pandemic are unique and the situation is evolving: “What may have been unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.”
What This Means for Employers
Both of these decisions illustrate that whether a mandatory vaccination policy will be found to be reasonable and enforceable is a very fact specific analysis. What is particularly relevant is whether there is any language in the collective agreement that requires vaccination by employees. The health and safety risk within the workplace is also a significant factor, as is the effectiveness of previous COVID-19 protective measures that were put in place. If the lack of vaccination by employees interferes with the ability of the employer to perform the work (either because of a government directive requiring vaccination of its employees or a customer-imposed requirement), this is a factor that supports the implementation of a mandatory vaccination policy. It is also important to note that, given the evolving nature of the COVID-19 pandemic, the circumstances giving rise to the need for a mandatory vaccination policy may change over time.
As this is a live issue that continues to evolve, we anticipate more decisions relating to the reasonableness and enforceability of mandatory vaccination policies will follow.
This article was written with the assistance of Dawson Harrison, an articling student working at Cox & Palmer.