COVID vaccination policies: a Canadian comparative analysis

Currently, the federal public service, City of Toronto employers and some select Ontario employers (such as those in the health care industry) are legally required to implement a workplace COVID-19 vaccination policy. Some businesses that are not legally required to implement a workplace vaccination policy are nevertheless making the decision to do so. Employment and labour lawyer Ronald Minken examines the legal viability of similar types of policies in Canada and how that may inform the enforceability of policies requiring employees to get vaccinated against COVID-19.

At this time, there are no court or arbitration decisions addressing COVID-19 vaccination policies. However, a look at how courts and arbitrators across Canada have addressed comparable policies, such as flu vaccine policies, COVID-19 testing policies and drug and alcohol policies, will provide some insight into whether a workplace vaccination policy would be upheld.

Drug and alcohol testing policies

Generally, drug and alcohol testing policies are permissible in limited circumstances. Arbitrators from Alberta, Saskatchewan, British Columbia, Newfoundland and Labrador and Ontario have found that policies requiring drug and alcohol testing are reasonable in circumstances where the employer has reasonable cause to suspect an employee is impaired, there is evidence of enhanced risk of substance abuse in the workplace (such as a culture of drug abuse), after a significant incident has occurred, or after a “near-miss” accident has occurred. Arbitrators have also found that employers must establish that other, less privacy-invasive means to address the problem have been ineffective.

Therefore, the reasonableness of a drug and alcohol testing policy depends on whether there is a high safety risk. If there is not, then it is unlikely a testing policy will be reasonable. For example, in Suncor Energy Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing Policy), Re, an Alberta arbitrator found that 14 positive alcohol tests over a nine-year period in the workplace did not constitute a legitimate safety risk requiring a drug and alcohol testing policy.

While there is a difference between extracting bodily fluids — as would be the case with a drug and alcohol testing policy — and requiring an employee to inject a substance into their body or requiring disclosure — as would be the case with a workplace vaccination policy — an arbitrator would likely find that if there is not a high safety risk — the risk of transmission of COVID-19 in the workplace — then a workplace policy requiring vaccination is unreasonable and an infringement on an employee’s privacy rights and bodily autonomy.

COVID-19 testing policies

COVID-19 testing policies have been addressed in two recent Ontario labour arbitration decisions. These decisions can provide insight into how an arbitrator will likely assess the reasonableness of a COVID-19 vaccination policy at the workplace and how an arbitrator will likely balance the competing interests of protecting workers from COVID-19 transmissions in the workplace and employees’ privacy rights. At the time of writing this article, there were no arbitration decisions from any other jurisdiction in Canada.

The central theme that determines whether a policy is reasonable is whether there is a high safety risk in that specific workplace.

In Caressant Care Nursing & Retirement Homes v. CLAC (Covid Testing), the employer implemented mandatory bi-weekly COVID-19 testing. The union filed a grievance challenging the policy.

The arbitrator held that the policy was reasonable, given that the objective of preventing the spread of COVID-19 in vulnerable sectors, such as a nursing home, outweighed the intrusiveness of the COVID-19 test. Given the seriousness of an outbreak, particularly to the elderly residents, that it was unreasonable to wait for an outbreak of COVID-19 to occur before implementing a COVID-19 testing policy, the arbitrator said.

In EllisDon Construction Ltd. and LIUNA, Local 183 (Rapid Testing Grievance), Re, as part of a pilot program led by the Ontario Ministry of Health, EllisDon implemented a Rapid COVID-19 Antigen Screening Program, which required employees to take rapid COVID-19 tests and submit the results to gain access to the workplace. In balancing the interests of the employer and employees with the pressing need to reduce the spread of COVID-19, the arbitrator found that the policy was reasonable.

In reaching this decision, the arbitrator determined that in this particular workplace, the employees could not maintain six feet of distance given the nature of the work, the risk of spreading COVID-19 was high, significant steps were taken to protect the privacy rights of the employees being tested — the test was administered by healthcare professionals — the test was minimally invasive, and there was no evidence that any of the other protective measures — such as the use of personal protective equipment (PPE) and hand sanitization stations — had significantly reduced transmissions or that all employees were working in an “open air” environment.

Based on the above two decisions, whether a policy requiring COVID-19 testing is reasonable or not appears to turn on whether there is a high risk of COVID-19 transmission in the workplace. Factors that address whether there is a high risk include:

• Employees’ ability to maintain social distance
• Application and effectiveness of other safety measures
• Previous incidents of COVID-19 outbreaks.

It is likely that a similar analysis will be undertaken with respect to the reasonableness and enforceability of a COVID-19 vaccination policy. Therefore, if the risk of transmitting COVID-19 in the workplace is high, and the danger of such an outbreak may result in serious harm to employees, customers or the public, a policy requiring proof of full vaccination may be reasonable.

Flu Vaccination Policy

Although there is a difference in the risk of transmission between COVID-19 and the flu, a policy requiring flu vaccinations is highly comparable to one requiring COVID-19 vaccinations, given that both require injecting materials into one’s body.

Generally, arbitrators across Canada recognize that a person’s freedom to make choices regarding their own body is afforded the highest degree of protection. The question of whether flu vaccination policies are reasonable has been addressed by arbitrators across Canada, including in B.C., Alberta, and Ontario — see Sault Area Hospital v. Ontario Hospital Association (Vaccinate or Mask), Re and St. Michael’s Hospitals and ONA, for example.

In St. Peter’s Health System v. C.U.P.E., Local 778, a flu vaccinnation policy was implemented in anticipation of a flu outbreak when there was not significant risk of one, and the policy was found to be unreasonable and “an assault” to human rights.

However, in other decisions in B.C., Alberta, and Ontario— Carewest v. A.U.P.E., Health Employers Association of British Columbia v. British Columbia Nurses’ Union, and Trillium Ridge Retirement Home v. S.E.I.U., Local 183 — arbitrators held that the flu vaccination policy was reasonable in cases where there were legitimate concerns over the health of patients, employees were given a choice between receiving a vaccine or wearing PPE, and the policy was to be implemented during an outbreak.

Given the greater risk of COVID-19 transmission in the workplace compared to the risk of transmitting the flu, the recent increase of COVID-19 transmission rates — particularly with the Delta variant — and government initiatives requiring vaccine passports in Quebec, Manitoba, B.C., and Ontario, and the greater harm caused by COVID-19 in comparison to the flu, it is possible that a COVID-19 vaccination policy may be upheld in workplaces where the risk of transmission is high.

Tips for employers

Given the above decisions across Canada on flu vaccination policies, COVID-19 testing policies and drug and alcohol testing policies, the central theme that determines whether a policy is reasonable is whether there is a high safety risk in that specific workplace.

In the case of COVID-19 vaccination policies, an employer must determine whether there is a legitimate risk of COVID-19 transmission in the workplace which cannot be addressed by other safety measures such as wearing PPE, social distancing, or working from home. If there is a high risk of transmission in the workplace and an employer wishes to implement a vaccination policy, the following are some things to keep in mind:     

Define important terms. What does fully vaccinated mean (does it account for booster shots? Which brands of vaccines are acceptable?) What proof is required?

Set a deadline for compliance. By what date does an employee have to provide proof of full vaccination?

Include any public health guidelines. For example, employees who are not vaccinated may be required to undergo regular Rapid Antigen Testing.

Provide alternatives to vaccinations. Are employees able to work from home if they choose not to be vaccinated?

Accommodate any refusal based on human rights. Employers have a duty to accommodate up to undue hardship based on a human rights ground — for example, religion, age, sex (including pregnancy), and disability.

Clearly communicate and educate employees. Employees should be given a copy of the written vaccination policy, and in some cases should be educated on what the policy requires and how it will be implemented and enforced.

Privacy concerns should be addressed. The policy should outline how, if at all, private medical information (such as proof of full vaccination status) will be stored, kept confidential and used.

Enforcement. Employers should not terminate an employee for cause for failing to comply with the vaccination policy. Any disciplinary action taken against an employee for failing to comply should be with legal guidance.

For more information, see:

• Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34 (S.C.C.).
• Hibernia Platform Employers' Organization v. Communications, Energy and Paperworkers Union of Canada, Local 2121, 2018 NLSC 1 (N.L. S.C.).
• British Columbia Hydro and Power Authority v. International Brotherhood of Electrical Workers, Local 258, 2018 CanLII 69598 (B.C. Arb.).
• Teamsters Local 876 v. Holtz Environmental, [2016] O.L.A.A 45 (Ont. Arb.).
• Teck Coal Ltd. v. UMWA, Local 1656 (Drug and Alcohol Policy), 2015 A.G.A.A. No. 59 (Alta. Arb.).
• Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 777, [2001] A.G.A.A. No. 102 (Alta. Arb.).
• Suncor Energy Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing Policy), Re, [2014] A.G.A.A. No. 6 (Alta. Arb.).
• Caressant Care Nursing & Retirement Homes v. CLAC (Covid Testing) (2020), 146 C.L.A.S. 279 (Ont. Arb.).
• EllisDon Construction Ltd. and LIUNA, Local 183 (Rapid Testing Grievance), Re (2021), 148 C.L.A.S. 370 (Ont. Arb.).
• Sault Area Hospital v. Ontario Hospital Association (Vaccinate or Mask), Re, [2015] O.L.A.A. No. 339 (Ont. Arb.).
• St. Michael’s Hospitals and ONA (2018), 137 C.L.A.S. (Ont. Arb.).
• St. Peter’s Health System v. C.U.P.E., Local 778, [2002] O.L.A.A. 164 (Ont. Arb.).
• Carewest v. A.U.P.E., [2001] A.G.A.A 76 (Ont. Arb.).
• Health Employers Association of British Columbia v. British Columbia Nurses’ Union, [2006] B.C.C.A.A.A 167 (Ont. Arb.).
• Trillium Ridge Retirement Home v. S.E.I.U., Local 183, [1998] O.L.A.A No. 1046 (Ont. Arb.).

Ronald S. Minken is the Founder & Managing Principal at Minken Employment Lawyers, an employment law boutique with locations in Toronto and the Greater Toronto Area. Ron gratefully acknowledges Tanya Sambi and Jason Moon for their assistance in preparation of this article. For more information, please visit www.MinkenEmploymentLawyers.ca.