COVID-19 vaccination policies in Ontario: Arbitrators weigh-in

Many employers have recently introduced or are considering mandatory vaccination policies for their employees. Yet, until just recently, there has been little guidance by adjudicators on their enforceability. We now have the benefit of three Ontario arbitration decisions on mandatory workplace vaccination policies. Crucially, it should be noted that these decisions are extremely fact-specific in that they were made (i) in the labour context, (ii) in Ontario, (iii) based on specific language that may or may not be included in the applicable collective agreements, and (iv) in relation to management’s reasonableness in implementing vaccination policies, rather than just the content of the policies themselves. 

On November 9, an Ontario arbitrator dismissed a policy grievance that challenged a mandatory COVID-19 vaccination policy. Specifically, the employer’s vaccination policy was found to be “reasonable, enforceable and compliant” with Ontario’s Human Rights Code (Code) and Occupational Health and Safety Act (OHSA).¹

Two days later, a different Ontario arbitrator allowed a grievance challenging an employer’s mandatory COVID-19 vaccination policy. The arbitrator found that certain aspects of the policy were unreasonable, including its disciplinary measures for failing to comply, which included discharge.²

The following day, a grievance challenging certain aspects of an employer’s vaccinate or test policy was allowed in part. The arbitrator ordered the employer to pay for the costs of testing, but found that employees are not entitled to compensation for their time spent on administering the tests. He also did not take issue with the policy’s disciplinary measures, which included termination for cause.³

Vaccination policy deemed enforceable: UFCW, Canada Local 333 v Paragon Protection Ltd.

In this case, the employer had approximately 450 client sites in Ontario and employed approximately 4,400 security guards. The majority of its clients had implemented their own vaccination policies for their employees and contractors, including security guards, which required individuals to be fully vaccinated to work at the locations. 

On September 3, the employer introduced both a COVID-19 Vaccination Policy (Vaccination Policy) and a COVID-19 Vaccination Exemption Policy (Exemption Policy). The Vaccination Policy required all employees be fully vaccinated by October 31, 2021, and provide the employer with a signed declaration confirming their vaccination status. The Exemption Policy provided for accommodation requests based on human rights grounds for only religious or health reasons. The Vaccination Policy stipulated that any policy violations or abuses may result in disciplinary action up to and including termination for just cause. 

The union took issue with the “rush” to implement the vaccination policies and explained that its members were concerned about acquiring additional health issues from vaccination. Specifically, the union alleged the employer’s vaccination policies violated the Code, the parties’ collective agreement (i.e., the management rights and health and safety provisions), the Health Care Consent Act, and that the policies were otherwise unreasonable.  

In response, the employer explained its rationale for implementing the Vaccination Policy and Exemption Policy. First, these polices were created out of an operational necessity due to clients implementing mandatory vaccination policies for anyone working on their properties. Second, employees themselves had raised a number of health and safety concerns related to working with non-vaccinated employees. Lastly, the nature of the business required interacting with the public; a reasonable approach to protect employees, clients, guests, and the general public was needed.

The policies were found to be “reasonable, enforceable, and compliant” with the Code and/or OHSA. Specifically, both policies struck an appropriate balance in respecting the rights of employees who have not been or do not wish to be vaccinated, while respecting a safe workplace for employees, clients and members of the public who interact with the employer’s security guards. 

In the arbitrator’s view, the employer must protect the health and safety of its employees and “every precaution reasonable” was taken to satisfy this obligation and responsibility under the OHSA. Regarding the union’s human rights concerns, the arbitrator relied on the Ontario Human Rights Commission’s policy statement on COVID-19 vaccine mandates and proof of vaccine certificates, and found that “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.” The arbitrator noted that this finding does not negate bona fide requests under the Exemption Policy. 

In considering case law on the influenza vaccine and mask requirements, the arbitrator found a distinct difference between the influenza context and the current COVID-19 pandemic, including the rate of infection and fatality, which in his view supported implementing the policies. Importantly, the distinction was well supported with evidence by the employer. 

Lastly, the specific collective agreement provisions were carefully considered. The arbitrator found that the employer appropriately exercised its management rights and applied the requirements of the collective agreement, which required employees to submit to vaccination where required by law or by client sites. 

Vaccination policy found unreasonable: Electrical Safety Authority v Power Workers’ Union

Two days after the Paragon decision, another Ontario arbitrator allowed a grievance challenging the employer’s mandatory COVID-19 vaccination policy (ESA vaccination policy). 

At issue in this grievance was the interpretation of management rights. The union argued the employer’s unilateral move to require all employees to disclose proof of their vaccinations or face discipline, including discharge, was unreasonable and inconsistent with the collective agreement. The union also claimed the ESA vaccination policy violated employees’ privacy rights and right to bodily integrity.

The employer argued that its introduction of the ESA vaccination policy was justified because (a) it was a reasonable exercise of management rights that satisfied its legal obligations to take every reasonable precaution to protect its workers and the public; (b) third parties' mandatory vaccination rules and policies may interfere with its business by impeding access to worksites; and (c) it planned to have employees return to the workplace in January 2022."

Unlike the collective agreement in Paragon, there were no collective agreement provisions in this decision that specifically addressed vaccinations. In Paragon, the arbitrator also dealt with different parties and a different context. Therefore, the arbitrator held that the Paragon decision was distinguishable from the case before him.

The ESA vaccination policy was found to be unreasonable in its current form, with a number of considerations coming into play:

• The majority of the work undertaken by the employees had been effectively undertaken remotely and many employees had the right to continue working remotely under the collective agreement.
• 88.4% of employees had voluntarily been vaccinated and disclosed their status. There was no evidence that work had been significantly impeded or lost because of the few employees who were not vaccinated.
• The employer’s previous policy (which allowed employees who chose not to disclose their vaccination status to submit to regular testing instead of vaccination) was not challenged by the union. The employer failed to demonstrate any difficulties in protecting its workplace using a combined vaccination and testing regime.
• Certain employees, as part of their job duties, inspect third-party premises. Despite this, third-party vaccination policies were found not have significantly interfered with the employer’s business.⁴

For these reasons, the arbitrator held that the employer acted prematurely and without considering the individual rights of employees. Ultimately, the arbitrator held that while an employer has the right to manage its business, without a specific statutory authority or provision in the collective agreement, an employer cannot terminate an employee for breach of a workplace policy unless it is found to be a reasonable exercise of management rights. In his view, it would be unjust to discipline or discharge an employee for failing to be vaccinated when it is not a requirement of being hired and where there is a reasonable alternative, such as regular testing. 

As a result, the employer was ordered to (i) amend its vaccination policy to make it clear that employees shall not be disciplined or discharged for failing to get vaccinated; and (ii) provide a testing option to those who have not been vaccinated. The arbitrator noted the employer may revise its vaccination policy to (i) indicate that in the future, if problems occur in its operations or safety concerns cannot be adequately addressed by a combined vaccination and testing regime, employees may be placed on unpaid administrative leave if they are not fully vaccinated and are provided with reasonable notice; (ii) require employees to confirm their vaccination status as long as the personal medical information is adequately protected and only disclosed with consent; and (iii) provide employees with the option of giving either general consent or consent on a case-by-case basis when disclosing vaccination status to access third-party premises.

The arbitrator emphasized that the specific context of each workplace must be analyzed when assessing the reasonableness of a workplace policy. He explained that, for example, in high-risk workplace settings with vulnerable populations, mandatory vaccination policies may not only be reasonable, but necessary to protect vulnerable people. On the other hand, workplaces where employees can work remotely and there is no specific problem or significant risk of outbreaks or significant interference of the employer’s operations, then a less intrusive alternative may be sufficient to address the risks. The arbitrator further noted that these circumstances may not always be static – what may have been unreasonable at one time, may no longer be unreasonable later, and vice versa. 

For individuals who choose not to get vaccinated without a legal exemption, the arbitrator emphasized that this decision should not be understood as a victory. Rather, in his view, such individuals may also be jeopardizing their ability to earn a living. 

Vaccinate or test policy largely upheld: Ontario Power Generation v Power Workers’ Union

The day after the ESA decision, a different Ontario arbitrator ruled on several issues surrounding an employer’s  vaccinate or test policy (OPG vaccination policy). Though the grievance was allowed in part, the OPG vaccination policy was largely upheld.

Specifically, the OPG vaccination policy proposed to require unvaccinated employees, as well as those who choose not to disclose their vaccination status, to self-administer two Rapid Antigen tests per week and upload proof of them having done so. These employees would also be required to pay the employer $25 per week to cover the cost of the testing program, or else purchase the tests themselves. Employees who refuse to participate in the testing program would then be placed on an unpaid leave of absence for a maximum of six weeks, following which, if they had not agreed to participate, would be terminated for cause. 

The union argued against several aspects of the OPG vaccination policy, which included alleging that: (i) it was not reasonable for the costs of testing, in both expense and time, to be borne by the employee; and (ii) placing employees who refuse to participate in the testing program on an unpaid leave of absence was a violation of the disciplinary process outlined in the parties’ collective agreement.

The arbitrator found that the legitimate interests of both parties would be balanced by granting an order that the tests be paid for by the employer, but refusing an order that the employer compensate employees for time spent outside working hours on self-administering tests. In coming to this decision, the arbitrator noted that testing unvaccinated employees is prima facie reasonable and, as the employer required the testing and verification, it was a cost reasonably borne by the employer. In terms of time spent, the arbitrator noted the benefits of having employees self-administer tests outside work hours, such as preventing the spread of COVID-19 and using employee time more efficiently. The arbitrator also flagged that compensating employees for this time could serve as a disincentive to get vaccinated, which would be inconsistent with the employer’s rational objective to have as many employees vaccinated as possible. 

The arbitrator did not take issue with the OPG vaccination policy’s disciplinary measures, as he found that the relevant clause of the collective agreement did not apply in these circumstances. While this was not a termination case, the arbitrator’s preliminary view was that in the context of this pandemic, when lives of co-workers are at risk, those who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they pose to their co-workers. The arbitrator noted that it is important for those who refuse testing to understand that they are “very likely” to find their termination upheld at arbitration.

Take-aways

It is important for Ontario employers to remember that the enforceability of any given policy is highly fact specific, will likely depend on the nature of the workplace, and the reasonableness of the policy’s terms and how it is rolled out. To that end, the context and risk assessment of each workplace is unique, and as such, so are risk mitigation policies.

In addition, by reading these three decisions together, it is clear that collective agreement language will be carefully considered by adjudicators and may prove to be an important factor in assessing the reasonableness of a mandatory vaccination policy. Indeed, it is important to note that these decisions were made based on specific aspects of the governing collective agreements, and should accordingly be considered in that context. 

Since these decisions were made in the context of Ontario labour, it is not yet clear to what extent they would apply to employers subject to different collective agreements or, again, in a non-unionized context where employer-employee relations are not governed by collective agreements and certain labour law principles. 

It should also be noted that in other jurisdictions, like Quebec, where employers have been successful in vaccination policy-related litigation, have taken and may continue to take a different approach than that followed by some decision-makers in Ontario, like in the ESA decision.  Indeed, it is important to recall that human rights and privacy considerations are relevant, and employers have the foremost responsibility to ensure reasonably safe and healthy workplaces, including with respect to the transmission of COVID-19 among workers. In a province like Ontario, where cases of COVID-19 appear to be on the rise, employers’ responsibilities and obligations under health and safety legislation should not be understated. 

Finally, what can be gleaned from these three decisions is that this type of policy – and how it is implemented – remains controversial, and litigation is expected to continue in this area. To prepare for this, employers would be wise to ensure that vaccination rules or policies be reasonably necessary in both their content and implementation, involve a proportionate response to a real and demonstrated risk or business need, and be well supported by the evidence. It is important to keep in mind that these considerations may not be static. As such, depending on the circumstances, a vaccination policy that is once found to be unreasonable may later be found reasonable, and vice versa. 

The authors would like to thank Colleen Dermody and Rebecca Brown, articling students, for their assistance in preparing this legal update.