Early Mixed Results for Mandatory Vaccination Policies

The reasonableness of mandatory COVID-19 vaccination policies for the workplace has been a hot topic in 2021. For many employers and employees, the question of whether employers can validly roll out mandatory vaccination policies has loomed large. A few initial arbitration decisions on the enforceability of such policies have now been released. Though results are mixed, there seems to be early lessons to be learned.

In this blog post we extract from the three arbitration decisions the early trends. It appears that arbitrators are taking a highly contextual approach to analyzing vaccination policies, with attention being paid to the evolving nature of the COVID-19 pandemic and the unique circumstances of each workplace. Moving forward, it is imaginable that policies that are temporary in nature and can account for change might stand a better chance at being found to be enforceable. It is important to keep in mind, however, that these decisions are specific to the unionized workplace and are not binding on future arbitrators or courts.

(1) United Food and Commercial Workers Union, Canada, Local 333 v. Paragon Protection Ltd.

The employer, Paragon Protection Ltd. ("Paragon"), employs security guards which it dispatches to approximately 450 client sites across Ontario. On September 3, 2021, the employer implemented a vaccination policy that required employees to be fully vaccinated by October 31, 2021. The policy allowed employees to apply for an exemption based on medical reasons or religious belief. Otherwise, failure to comply with the policy could result in disciplinary action, up to and including termination.

The union filed a grievance, arguing that the policy violated the collective agreement between the parties and the Ontario Human Rights Code (the "Code"). The union submitted the policy was unreasonable in part because of the punitive consequences employees could face for being unvaccinated or refusing to disclose their vaccination status.

The arbitrator held that the policy was reasonable, in favor of Paragon.

In reaching this conclusion, the arbitrator emphasized that:

• The rules relating to exemptions from the policy complied with the Code requirements.
• By introducing the policy, the employer had complied with its obligations under Ontario's Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of its workers.
• The personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations on the pandemic and COVID-19.
• The circumstances and considerations relating to the COVID-19 pandemic are distinctly different than those for the influenza.
• The policy complied with the terms of the collective agreement, including a provision relating to vaccination requirements for client sites which had been included in the collective agreement prior to the pandemic.

(2) Electrical Safety Authority v. Power Workers Union

The employer, Electrical Safety Authority ("ESA"), implemented a mandatory vaccination policy on October 5, 2021. ESA's policy stipulated that unvaccinated employee may face discipline, up to and including termination.

Interestingly, prior to enacting this vaccination policy, the employer had previously had a vaccine disclosure or testing policy, which permitted employees to undergo rapid antigen testing as an alternative to disclosing their vaccination status and did not threaten discharge or discipline for not being fully vaccinated.

The union filed a grievance, challenging the reasonableness of the new policy.

The arbitrator held the policy was unreasonable, in favor of the union.

In reaching his conclusion the arbitrator noted the following:

• The circumstances are fluid, and the reasonableness (or unreasonableness) of the policy may change as the situation unfolds.
• There was nothing in the collective agreement between the parties that addressed vaccination, and the employer had not previously required any employees to be vaccinated as a condition of employment.
• The employer did not prove there were significant changes in circumstances which warranted introducing the new, mandatory policy.
• The employer had not demonstrated any difficulties in maintaining workplace safety and health under the previous policy.
• Most of the work was done remotely, and the employer could assign vaccinated employees to perform in-person work or jobs requiring travel, if needed.

The arbitrator considered the decision in Paragon but distinguished it based on the different contexts and the specific language in the applicable collective agreements.

(3) Ontario Power Generation v. The Power Workers Union

In this case, the employer adopted a "vaccination or test" policy. The employer and union were able to resolve a number of issues regarding the policy, but some specific issues were put before an arbitrator for determination. These included:

• Should the cost of COVID-19 testing for unvaccinated employees be paid for by the employer and should testing occur during working hours?
• Treatment of employees who do not agree to undergo COVID-19 testing.
• Gym access for employees who are unvaccinated or choose not to disclose their vaccination status.

The arbitrator concluded that most of the terms of the policy were reasonable, and made the following findings:

• It is reasonable to require employees who have not confirmed they are fully vaccinated to undergo rapid antigen testing on their own time, without compensation. This was in part due to concern it would disincentivize employees to get vaccinated if compensation was provided.
• The employer should bear the cost of the rapid antigen testing for unvaccinated employees.
• It was reasonable for the employer to place employees who did not comply with the testing or vaccination requirement on a 6-week unpaid leave of absence, with the potential of termination at the end of the 6-week period.
• Given that it is a matter of public record that gyms are high risk areas, temporarily prohibiting gym access for unvaccinated employees or employees who chose not to disclose their vaccination status is reasonable. The arbitrator specifically noted that the policy was not intended to be permanent.

In reaching his conclusions, the arbitrator emphasized that his decisions were largely based on the unique context of the employer's workplace.

Takeaways

While it is still early days, these decisions suggest some important themes:

• Arbitrators believe that employers must take reasonable precautions to limit the spread of COVID-19 in their workplace.
• Arbitrators recognize the evolving nature of the COVID-19 pandemic, and that what may be reasonable at one point in time may no longer be reasonable at another and vice versa. This suggests that policies that are temporary or allow for change as the situation evolves may stand a better chance at passing the litmus test for reasonability.
• In assessing the reasonableness of a mandatory vaccination policy, arbitrators will consider:
  • Context of the workplace;
  • Consequences to be faced by unvaccinated employees;
  • Whether the employer can implement other preventative and screening measures; and
  • Whether there are previous policies or rules the employer might have had in place relating to vaccination or health requirements for the job.

That said, this remains an ever-changing and developing area, and employers and employees alike are encouraged to stay closely tuned to this evolving issue. Lee Workplace Law would be happy to answer your questions about COVID-19 and your workplace.