New Arbitration Decisions on Mandatory Vaccination Policies

There has been a recent flurry of arbitration decisions released in the last 3 months that provide guidance to employers concerning vaccination policies, and other requirements for COVID-19.

In United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. [unreported] the employer imposed a mandatory vaccination policy on its employees. It employed approximately 4400 security guards represented by the Union. 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 which requires that a policy or rule created by the employer must 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; and
• Such rule should have been consistently enforced by the company from the time it was introduced.

Paragon took the position that because the majority of its clients implemented their own mandatory policies for staff on-site, and as such there was no other option. It was required to implement the policy to serve its clients, to maintain a safe and a healthy work environment for its employees, staff, and public. It also argued it had the power to impose this policy because of its management rights clause, and Article 24.05 which stated:

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 deciding that there were no Code issues, the Arbitrator considered the comments from the Ontario Human Rights Commission, that personal preference, or singular belief against vaccinations do not amount to a creed for the purposes of the Code. Finally, the Arbitrator noted the employer’s introduction of the policy was reasonable pursuant to its management rights clause.

In Electrical Safety Authority v. Power Workers’ Union [unreported], the result was different. In that case the Union 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 fulfilled 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, the employee was 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 given the disciplinary consequences. 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. Notably, the Arbitrator 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, but he did have an issue with the consequences of any refusal.

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 as the KVP test requires that an employer consider aspects that are unique to its own circumstances when imposing a policy or rule. The takeaway for employers is that there will be no “one size fits all” approach and each industry and workplace will have different factors to consider, including the consequences of refusing to comply with a policy, when assessing the legitimacy of a mandatory vaccine policy.

In Ontario Power Generation and The Power Workers Union, the Arbitrator considered testing requirements related to COVID and in particular, whether self-administered tests, twice a week, mandated by the employer was a reasonable rule, at the employees cost of $25/week. An employee could be placed on an unpaid leave or discharged if he or she refused. The Arbitrator ruled that the cost should be borne by the employer, but also determined that the policy was reasonable given the requirements for an employer to ensure a safe workplace under the Occupational Health and Safety Act. The Arbitrator noted that being placed on an unpaid leave for refusing simple testing requirements was reasonable and a minimally intrusive measure to ensure fitness for work. The arbitrator said:

It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of their employment upheld at arbitration. Effectively, employees who refuse testing will likely have made a decision to end their career with this company.

The decision is helpful for employers looking to ensure that employees comply with reasonable safety policies imposed in the workplace designed to protect against COVID-19 in the workplace.