A review of recent arbitration awards shows mixed results for employers
Employers and employees alike have been eagerly awaiting direction from the courts regarding whether or not mandatory vaccination policies will be enforceable and, if so, in what contexts. While we will have to wait a bit longer for judicial interpretation of this issue, we now have a number of decisions from labour arbitrators ruling on the enforceability of vaccination policies, with mixed results.
UFCW Local 333 and Paragon Protection
In this case, Paragon Protection had introduced a COVID-19 vaccination policy that required all employees to be fully vaccinated by Oct. 31, 2021 unless they were entitled to an exemption pursuant to the Ontario Human Rights Code. Employees who failed to be vaccinated, and who were not entitled to an exemption, could be subject to disciplinary action up to and including the termination of their employment for just cause.
The union filed a grievance alleging, among other things, that the policy was an unreasonable exercise of management rights, violated the Ontario Human Rights Code, and was inconsistent with a previous arbitral decision which dealt with an influenza vaccination policy.
It is important to note that Paragon is a security service company employing roughly 4,400 security guards in Ontario at 450 client sites, the majority of which had instituted their own vaccination policies that required contract workers to be fully vaccinated in order to work on site. It should also be noted that the collective agreement between the parties contemplated that employees assigned to a work site which had a vaccination requirement would be required to receive such vaccinations or be subject to reassignment.
The arbitrator concluded that Paragon’s mandatory vaccination policy was reasonable and enforceable, finding that it complied with both the Ontario Human Rights Code (in striking a balance between the rights of employees who are not vaccinated while providing a safe workplace for staff, clients and members of the public) and the Occupational Health and Safety Act (in that the employer had an obligation to take every precaution reasonable in the circumstances for the protection of its workers).
The arbitrator found that the employer had acted reasonably in implementing its vaccination policy and that it was consistent with the terms of the collective agreement. The arbitrator also distinguished this case from the 2018 arbitration award raised by the union, noting that the earlier decision was made outside the context of a pandemic and was not comparable.
Ontario Power Generation and the Power Workers Union
In this case, Ontario Power Generation had introduced a vaccination policy that stated if an employee refused to be vaccinated, then they were required to undergo testing twice a week at the employee’s cost. Employees who refused to get vaccinated or to comply with the testing requirements would be placed on an unpaid leave of absence for six weeks and, if they continued to refuse, their employment would then be terminated for just cause.
The arbitrator upheld OPG’s vaccination policy with minor adjustments. In particular, the arbitrator indicated that OPG was required to cover the cost of the twice weekly testing that employees who refused the vaccine were required to submit to. However, the arbitrator did find that employees had to take the test on their own time, for which they would not be compensated.
The ability to place an employee on an unpaid leave of absence, and ultimately terminate their employment for cause, if they refused to get vaccinated and refused the testing, was upheld. The arbitrator also upheld part of the policy that restricted access to an indoor gym to only those who are fully vaccinated, noting that unvaccinated employees could still exercise outside if they chose.
Electrical Safety Authority and Powers Workers Union
In this case, the employer implemented a mandatory vaccination policy that required all employees to get vaccinated. If they failed to do so, the employees could be placed on an unpaid leave of absence or be subject to dismissal. The union argued that the mandatory vaccination policy was an unreasonable exercise of management discretion, violated the collective agreement, and violated employee rights to privacy and bodily integrity.
Importantly, in this case the vast majority of the work undertaken by employees could be completely remotely (indeed, the collective agreement contemplated that many employees had the right to work remotely).
The arbitrator found that the mandatory vaccination policy was unreasonable and unenforceable to the extent that employees could be disciplined or terminated for failing to become fully vaccinated. In reaching his decision, the arbitrator focused on the fact that the workplace in question had no history of outbreaks or infections and that a significant number of workers were continuing to work remotely.
Key takeaways for employers
These decisions highlight that there is no “one-size fits all” answer when it comes to the enforceability of vaccination policies. Rather, as arbitrator John Stout emphasized in the Electrical Safety Authority decision, “context is extremely important when assessing the reasonableness of a workplace rule or policy that may infringe upon an individual employee’s rights.”
In workplaces where higher risks are present (for example, working with vulnerable populations), mandatory vaccination policies may not only be reasonable but necessary in order to ensure health and safety. The same will not be true in a workplace where the majority of workers are able to work remotely and where there is no significant risk of a potential outbreak.
Employers should carefully assess the degree of risk present in their workplaces before implementing a mandatory vaccination policy. They should also consider whether there are less intrusive alternatives available, such as allowing employees to work remotely, or requiring regular mandatory testing for employees who do not wish to get vaccinated.