In a recent labour arbitration award, United Food and Commercial Workers Union, Canada, Local 333 and Paragon Protection Ltd.,1 Arbitrator Von Veh confirmed that an employer's mandatory COVID-19 vaccination policy was a reasonable exercise of management rights.
The employer, a security services company, employs approximately 4400 unionized security guards in Ontario. Out of the approximately 450 client sites employing the employer's bargaining unit members, a majority had mandatory vaccination policies in place which required contract employees, including security personnel, to be fully vaccinated in order to work or remain working at such sites. The remaining client sites indicated to the employer that mandatory vaccination policies were forthcoming.
In this context, the employer introduced a mandatory COVID-19 vaccination policy which required that all employees be fully vaccinated by October 31, 2021. According to the policy, for a two dose vaccine, employees had to receive their first dose by September 30, 2021 and their second dose by October 31, 2021. For a single dose vaccine, employees had to receive the dose by September 30, 2021. For employees assigned to client sites that required all personnel to be fully vaccinated before October 31, 2021, those employees had to be fully vaccinated by that earlier date. Employees were required to sign a declaration that they were fully vaccinated and the policy provided for exemptions.
Shortly after the employer introduced the mandatory vaccination policy, the union filed a policy grievance which alleged that the employer's mandatory COVID-19 vaccination policy constituted an unreasonable exercise of management rights and violated the Ontario Human Rights Code. The union requested that the employer rescind the vaccination policy and comply with the terms and conditions of the collective agreement between the parties.
The arbitrator held that the employer's mandatory vaccination policy was reasonable, enforceable and compliant with both the Ontario Human Rights Code (the "Code") and Ontario's Occupational Health and Safety Act ("OHSA") and dismissed the union's grievance. In specific, the arbitrator made the following findings:
- The employer's unilateral introduction of the vaccination policy was a reasonable exercise of management rights.
- In light of the Ontario Human Rights Commission's Policy Statement on COVID-19 Vaccine Mandates, the arbitrator held that the employer's mandatory vaccination policy and the exemptions it provided was compliant with the Code. Moreover, the arbitrator held that employees' personal subjective perceptions of the COVID-19 vaccine "cannot override and displace available scientific considerations."
- Pursuant to section 25(2)(h) of the OHSA, the employer had an obligation to "take every precaution reasonable in the circumstances for the protection of a worker." In light of the health and safety risks posed by the COVID-19 pandemic, the arbitrator held that the employer's introduction of the vaccination policy fulfilled its obligations and responsibilities to protect the health and safety of its employees.
The arbitrator also distinguished the employer's mandatory COVID-19 vaccination policy from an earlier arbitral decision which dealt with an employer policy which required employees to obtain the annual influenza vaccine or wear a mask. The arbitrator stated that the earlier decision "certainly did not deal with pandemic conditions which currently exist." Specifically, the arbitrator stated that there are differences between influenza and the COVID-19 pandemic and made reference to the higher infection and fatality rates of COVID-19 compared to seasonal influenza.
It should be noted that the collective agreement between the parties in this arbitral award included a provision which required employees assigned to a work site which had a vaccination or inoculation requirement to receive such vaccinations or inoculations, or be subject to reassignment. This provision was a factor in the arbitrator's finding that the vaccination policy was reasonable.
Ultimately, the arbitrator concluded that the vaccination policy struck a balance between respecting the rights of employees who have not, or do not, wish to be vaccinated, while respecting a safe workplace for the employer's staff, clients, and members of the public with whom the employer's security guards interacted.
Takeaways for Employers
This is the first Ontario decision on the merits we are aware of considering the reasonableness of an employer's mandatory COVID-19 vaccination policy. While the vaccination policy in this case was considered in the light of its unique collective agreement language, this decision provides some arbitral support for mandatory vaccination policies.
If you have any questions about mandatory COVID-19 vaccination policies, or would like assistance with developing and/or reviewing pandemic plans, please contact the author or your regular Fasken lawyer.
1 United Food and Commercial Workers Union, Canada, Local 333 and Paragon Protection Ltd, unreported, November 9, 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.