Last week's Employer's Edge blog reviewed the first labour arbitration case in Ontario to consider a challenge to an employer's mandatory vaccine policy: UFCW, Canada Local 333 and Paragon Protection Ltd. decided on November 9, 2021. That article left our readers with advice that "a properly-considered, well-drafted Vaccination Policy can and will be upheld where that Policy is reasonable." That underlined caveat proved prescient, since a November 11, 2021 arbitration decision struck down another employer's COVID-19 Vaccination Policy.
Arbitrator Stout heard the policy grievance in Power Workers' Union and Electrical Safety Authority over the employer's mandatory COVID-19 Vaccine Policy that the Union said was unreasonable, over-reaching, and violated the collective agreement as well as employees' rights to privacy and bodily integrity. The Employer disagreed, arguing that its policy fulfilled their legal obligations to take every reasonable precaution to protect their workers and the public.
The mandatory vaccine policy was implemented as of October 5, 2021, and provided among other things, that unvaccinated employees may be subject to discipline and even discharge. The employer previously had a vaccine disclosure and testing policy, which did not threaten to discipline workers for being unvaccinated. Both the employer and the Union supported that previous policy as reasonable and appropriate to protect employees and stakeholders.
The Arbitrator was clear to note that circumstances are fluid and what is reasonable at one point in time might be unreasonable later – or vice-versa – but that when the employer instituted the new policy, there did not appear to be any significant change apart from a concern that third-party vaccination policies and rules may interfere with the business. Further the employer did not demonstrate any difficulties achieving their legitimate workplace health and safety obligations under the less harsh disclosure and testing policy. The Arbitrator stated at paragraph 26 of his decision: "At this point the ESA has legitimate concerns, but those concerns do not at this point justify imposing a mandatory vaccine regime with threats of discipline or discharge."
The Arbitrator found that in this case, a majority of work being performed for the employer was effectively being done remotely, and that employees had a right to continue to work remotely pursuant to their collective agreement. To the extent that work may require in-person inspections with third-parties or travel, the Arbitrator noted that the work could simply be assigned to employees who had disclosed their status as fully vaccinated. The Arbitrator was not satisfied that the legitimate issues raised by the employer could not be effectively addressed with a vaccine disclosure and testing policy, such as was in effect prior to October 5, 2021.
In a word, the Arbitrator found that the discipline and discharge features of the new policy were "premature" in the circumstances. He decided that "disciplining or discharging an employee for failing to be vaccinated when it is not a requirement of being hired and where there is a reasonable alternative, is unjust." The Policy was remitted back to the Joint Health and Safety Committee for review and amendment.
The Arbitrator did have the opportunity to consider the Paragon Protection decision decided mere days earlier, and ruled that it was distinguishable. He said that Paragon Protection arose in a different context, involving different parties, and collective agreement language requiring employees to receive a specific vaccination at an assigned site. The Arbitrator opined that the Paragon Protection case upholding the employer's mandatory vaccination policy was reasonable in those particular circumstances.
Guidance for Employers
In our various blogs, podcasts, and webinars, the lawyers for employers at CCPartners have been emphasizing the importance of considering your business' particular workplace needs when drafting a COVID-19 vaccine policy. We have drafted many ... MANY policies for our clients, and each one has to be individually-tailored to the client in order for it to be enforceable.
Employers need to keep this in mind when implementing, revising, and updating their policies. The Arbitrator included this reminder in his decision, stating in part:
Context is extremely [important] when assessing the reasonableness of a workplace rule or policy that may infringe upon an individual employee's rights.
However, in other workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer's operations, then a reasonable less intrusive alternative [such as voluntary vaccination disclosure and testing] may be adequate to address the risks.
A COVID-19 vaccination policy with a disciplinary component is much more likely to be upheld when employees are interacting with vulnerable members of the public, such as in health care, childcare, and long-term care. It is less likely to be upheld where employees can effectively take other protective measures like working remotely.
Guidance for the Public
Thankfully, the Arbitrator included a special note for anyone who interpreted his decision as supporting the ... well let's just say it ...ill-informed anti-vaxx movement.
As I stated at the beginning, this award should not be taken as a vindication for those who choose, without a legal exemption, not to get vaccinated. Those individuals are in my view misguided and acting against their own and society's best interests. These individuals may also be placing their ability to earn a living in jeopardy. These individuals should not construe this award as a victory.
The Arbitrator was clear to remind all parties that individual workers who simply choose not to be vaccinated are not protected by the Ontario Human Rights Code. A non-union employer who does not have a disciplinary reason to terminate the unvaccinated employee, can still discharge them from employment so long as the employer provides that employee with the necessary notice of termination or pay in lieu thereof.
If you have questions about the validity of your workplace COVID-19 Vaccine Policy, or you need to consider updating or amending your policy in the circumstances, please reach out to the lawyers for employers at CCPartners for proper guidance and support.
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.