Since the introduction of Covid-19 vaccinations in early 2021, some employees have refused to get vaccinated for a variety of reasons including privacy, personal belief, medical or religious reasons. In response to the pandemic, many employers have implemented mandatory vaccine policies in an effort to provide safe workplaces. Some policies are being challenged by unions as an unreasonable exercise of management power and an affront against human rights and privacy rights of workers.
It should be noted that despite the policies being challenged, a unionized employer has the right to implement rules and regulations, as long as they are compliant with the collective agreement and comply with what is referred to as the “KVP test”.
The KVP test is applied where the employer enacts a unilateral rule or policy, which is not agreed to by the union, and can result in discipline to employees for failure to follow them. The KVP test requires that the policy or rule created by the employer comply with the following requirements:
- It must not be inconsistent with the collective agreement;
- It must not be unreasonable;
- It must be clear and unequivocal
- It must be brought to the attention of the employees affected before the company can act on it;
- The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge;
- Such rule should have been consistently enforced by the company from the time it was introduced.
In respect of the COVID-19 policies that have been challenged, there have been two cases that have been recently released in November, within Ontario. The first, United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd. [unreported] and the second called Electrical Safety Authority v Power Workers’ Union [unreported].
With respect to the first case, the employer Paragon Protection, employed approximately 4400 security guards represented by the Union. Paragon introduced a new policy ordering its employees to be fully vaccinated by October 31, 2021.
The Union argued that it was a violation of the Ontario Human Rights Code, the policy was unreasonable and not in compliance with the KVP test, and was also in violation of the Health Care Consent Act.
Paragon took the position that because the majority its clients had implemented their own mandatory policies for staff on site, there was no other option. It was required to implement this policy in order to properly serve its clients, and to maintain a safe and health work environment for its employees, staff, and public. It also took the position that because of the management rights article in 4.01(b) and article 24.05 in the collective agreement, it had the power to mandate vaccinations. Article 24.05 stated as follows:
If an employee is assigned to a site 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 employee must agree to receive such vaccination or inoculation.
The Arbitrator determined that the policy was reasonable, enforceable and compliant with the Ontario Human Rights Code, and the Occupational Health and Safety Act. In respect of the argument concerning the Health Care Consent Act, the provisions were not applicable to the matters in the proceedings given that the employer was not a health care practitioner.
Further, in determining that the mandatory policy was not against the Code, the Arbitrator considered comments from the Ontario Human Rights Commission, that a personal preference, or singular belief against vaccinations do not amount to a creed for the purposes of the Code. The exact wording that the commission used is as follows:
Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code. While the Code prohibits discrimination based on creed, personal preference or singular beliefs do not amount to a creed for the purposes of the Code.
The Arbitrator also noted that article 24.05 was correctly incorporated into the vaccination policy, and that the company unilaterally introducing the COVID-19 Vaccination Policy, was reasonable pursuant to Article 4.01 (b). The Arbitrator indicated that the employer’s implementation of the policy was reasonable and that it satisfied the KVP test.
In Electrical Safety Authority v Power Workers Union, [unreported] the Arbitrator came to a different conclusion.
The Union, the PWU, filed a grievance in respect of the COVID-19 mandatory vaccination policy, arguing that it was unreasonable and a significant over-reaching exercise of management rights, which violated the collective agreement and employee’s rights to privacy and right to bodily integrity.
The employer argued that there was no violation, that it was a reasonable exercise of management rights under the KVP test, and fulfils their duties to take every reasonable precaution to protect their workers and the public under the occupational health and safety legislation.
In terms of the policy itself, the policy stated that all staff were required to be fully vaccinated unless exempt on the basis of a valid Human Rights Code ground. All Staff were required to provide proof of their second vaccination by December 22, 2021. In the circumstance where there was no exemption under the Human Rights Code, there was no alternate work accommodation for employees who chose not to comply with the procedure.
In the event the employees did not follow the procedures, they were subject to discipline up to and including discharge from employment and could also be put on unpaid leave.
The Arbitrator determined that the vaccination policy was unreasonable to the extent that employees could be disciplined or discharged for failing to get fully vaccinated. He also determined that it was unreasonable to put employees on administrative leave without pay in the event that they did not get fully vaccinated.
With that said, Arbitrator Stout did not find that it was unreasonable for the employer to require employees to confirm their vaccination status as long as the personal information is adequately protected and only disclosed with their consent. The arbitrator indicated that employees may provide general consent to disclose vaccination status in order to access third party premises or an employee may reserve the right to disclosure on a case-by-case basis.
The Arbitrator indicated that in workplace settings where the risks are high and there are vulnerable populations, then mandatory vaccination policies may not only be reasonable but may also be necessary to protect the populations. However, in other workplace settings where employees can work remotely, and there is no specific problem related to an outbreak, infections, or interference with an employers’ operations then a reasonable less intrusive alternative, such as a vaccination disclosure and testing policy could be adequate.
The Arbitrator found in this case that the existing safety policy which had been put in place was reasonable noting that the employer had not demonstrated any difficulties protecting their workplace using a combined vaccination and testing regime such that disciplining or discharging employees for failing to be vaccinated would be unjust. The Arbitrator pointed out the following circumstances in arriving at this decision:
- that there had been no break out in the employer’s workplace, and only 7 employees out of 400 had contracted infections;
- There was no statute that required the mandatory vaccination policy;
- The vast majority had been vaccinated and disclosed their status;
- The existing policy worked well which required individuals who did not disclose their status to be tested on a regular basis;
- There was no evidence that the existing policy did not work;
- Testing as a safety precaution had been endorsed by the Ontario Chief Medical Officer of Health;
- The third-party sites that required attendance also had a testing alternative;
- There was no analysis or substantial interference with the employer’s business.
It should be noted that the aspect of the policy that was unreasonable was the discipline or discharge that could follow a refusal to get vaccinated. Despite portions being found unreasonable, the Arbitrator noted that in the event that there was a health and safety problem in the workplace, or if a number of unvaccinated employees creates a real problem for the business that cannot be addressed by another reasonable way, then the employer could take other measures including putting employees on administrative leave.
While there are two differing cases, one that holds that the vaccination policy was reasonable, and another that holds that a portion of the policy was unreasonable, future cases will no doubt be decided on the individual circumstances of the employer. In particular the KVP test requires that an employer consider aspects that are unique to its own circumstances when imposing a policy or rule. If you have any questions concerning vaccination policies, please contact us.
Authored by: Travis Ujjainwalla
The material presented in this blog is to present general information on the subject matter and should not be regarded or relied upon as legal advice or opinion.