Recently, we saw an arbitrator strike down a two-dose vaccination policies (FCA Canada Inc. v Unifor, Locals 195, 444, 1285, 2022 CanLII 52913 (ON LA) which we blogged about here), for being unreasonable because two-doses does not protect against newer strains of COVID-19. The decision in Regional Muncipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), 2022 CanLII 78173 (ON LA) is a notable sequel as it considers the reasonableness of a three-dose vaccination policy. In a decision favourable to employers, the three-dose vaccination policy in question was found to be reasonable and enforceable.
The Employer operates two long-term care homes. The decision is the second in a trio of decisions, the first decision considered whether a two-dose vaccination policy is reasonable. Unlike the FCA v Unifor case, the two-dose policy was found to be reasonable. At the time of the hearing, both homes were experiencing an outbreak of COVID-19 which infected staff and residents.
The Employer originally put their vaccination policy in place when a directive was issued by the Ontario Government to implement a three-dose vaccination policy in all long-term care homes. The Directive was revoked by the Government on March 14, 2022. The Employer chose to proceed with its policy beyond the date of revocation. The Employer argued that the policy was appropriate considering the Collective Agreement, its statutory obligations under Ontario Occupational Health and Safety ("OHSA") and the information that was available to the Employer from the Ontario Science Table.
The Union submitted that the policy does not meet the KVP test. The KVP test arises from Re Lumber and Sawmill Workers Union, Local 2537 and KVP Co. ((1965), 16 LAC 73 (Robinson) and is generally applied by arbitrators to determine whether an employer can rely on a policy that they unilaterally imposed. The test is as follows:
- Is the policy consistent with the collective agreement?
- Is it reasonable?
- Is it clear and unequivocal?
- Did employees receive notice of the new policy prior to its implementation?
- Did employees receive notice that a breach of the policy could result in termination, if the policy could be used as a foundation for such?
- Has the employer enforced the rule consistently since its introduction?
The Union argued that the policy failed to pass the first two prongs of the above test. It claimed that the three-dose policy is inconsistent with the Collective Agreement. In addition, the policy failed the second step because it was no longer supported by the Government Directive and it did not strike the appropriate balance between the interest of the individual employees and the Employer. The Union further submitted that the policy was invalid as the Union was never consulted by the Employer about the policy.
Arbitrator Raymond dismissed the claims of the Union and found the policy to be reasonable. Responding to the Union's first claim that the policy was inconsistent with the Collective Agreement, Arbitrator Raymond found that there was nothing within the Collective Agreement that created an inconsistency between the Agreement and the policy.
Arbitrator Raymond also dismissed the Unions second claim that the policy is unreasonable due to the revocation of the Directive and the improper balance between the policy and employee interest. While the Arbitrator acknowledged that the employees' interest of bodily integrity are real and serious, the Employer had no choice but to make a mandatory vaccination policy as obliged by the Government Directive. When the Directive was revoked, the Employer reasonably chose to maintain the policy. The decision to continue was reasonable as the Employer did so to protect the health and safety of employees and residents, as required by their statutory obligations. In addition, the workplace itself was particularly vulnerable as the workplace is a long-term care home with residents that could have been seriously affected by the virus.
Finally, Arbitrator Raymond dismissed the Unions final argument that the Employer failed to consult the Union about the vaccination policy. Arbitrator Raymond did note that it was concerning that the Employer chose not to consult the Union. However, he determined that this could not form a basis for a Collective Agreement violation unless there is language in the agreement that requires consultation, which is not the case for this agreement. Additionally, the above KVP test is for unilaterally imposed policies. If there was consultation, the policy would not qualify as unilateral. Therefore, the policy was found to be reasonable and enforceable.
Takeaways for Employers
This case is a win for employers who have been or would like to enforce a three-dose vaccination policy. Employers will be able to rely on the case as a precedent and bolster their position that their own three-dose vaccination policy is reasonable. However, employers should still proceed with caution and take several lessons from the above case. First, that a three-dose vaccination policy may only be enforceable in high risk conditions. In the above matter, the policy was implemented for long-term care homes. The residents in the homes are extremely vulnerable to COVID-19, requiring the employer to take precautions to protect them from harm. It may be more difficult to successfully enforce a three-dose policy in a workplace setting that does not involve as much risk or where employees can successfully fulfill their job obligations remotely, such as a corporate office. Employers can also glean from the case that they do not need to consult the union on their vaccination policy unless the collective agreement has specific language requiring them to do so. However, the Arbitrator did note that the lack of consultation was concerning. From a practical and labour relations standpoint it may make the implementation process smoother if the employer does include the union in the discussion surrounding the policy.
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