On August 30, 2022, Arbitrator Raymond upheld a mandatory three-dose vaccination policy in a long-term care home setting and found the employer even had a positive obligation to impose the policy, despite revocation of the Government Directive mandating vaccination policies in long-term care homes.

The Government of Ontario issued a directive requiring all long term care home workers to have three COVID-19 vaccine doses. The Employer in this case, The Regional Municipality of York, followed the directive and implemented their three dose vaccine policy in long term care homes. On March 14, 2022, the Government revoked the directive yet the Employer maintained and enforced their policy.

The Union argued the policy was inconsistent with the collective agreement and unreasonable. The Union also alleged that the Employer's failure to consult the Union regarding the policy amounted to a violation of the collective agreement.

Was the policy inconsistent with the collective agreement?

The Union argued the policy was inconsistent with the collective agreement because the employer did not carry out their management rights in a manner that was "fair, reasonable and consistent with the collective agreement".

The Employer argued the policy was consistent with the collective agreement because the Employer was committed to protecting the health of its employees in the workplace and promoting a safe and health work environment under the collective agreement.

Arbitrator Raymond concluded there was no inconsistency with the collective agreement and he turned to the question of whether the policy was unreasonable.

Was the policy unreasonable?

The Union argued that the policy was unreasonable on two bases: i) the policy was no longer required by a Government Directive and ii) the interests of the individual employees not to be vaccinated should outweigh the interests of the Employer.

According to the Union, the Directive would not have been revoked if a policy was required. Arbitrator Raymond rejected this argument and held the Employer "is not inherently unreasonable to have a vaccination policy without the mandate of the Directive."

Arbitrator Raymond accepted that individual employees who chose to not comply with the policy have real and serious interests, including the right to bodily integrity. Nevertheless, Arbitrator Raymond found the Employer's interests should be given more weight in the circumstances and the policy was reasonable.

Arbitrator Raymond agreed with the Employer that it was reasonable to maintain the policy due to its obligation to protect the health and safety of its i) employees pursuant to the collective agreement, and the Occupational Health and Safety Act, and ii) residents pursuant to regulations for long-term care homes. Arbitrator Raymond also considered that the health information available to the Employer regarding COVID-19 and vaccines supported three doses of vaccine as one of the best defences against COVID-19.

More importantly, Arbitrator Raymond held the "Employer had a positive legal obligation to impose a three-dose mandatory vaccination policy" due to the Employer's obligations regarding the health and safety of its employees and residents.

Lack of Consultation Regarding the Policy

Arbitrator Raymond found the lack of consultation concerning but, ultimately, he dismissed the Union's argument, noting that a lack of consultation does not violate the collective agreement unless there is language in the collective agreement requiring consultation.

Another Challenge Around the Corner

The Union also challenged the vaccination policy's reasonableness on the basis of its termination provisions. The parties intentionally deferred this specific issue to a separate hearing, and Arbitrator Raymond's anticipated decision on this issue may impact the enforceability of the policy.

Key Take-Away for Employers

This decision provides support for employers in the long-term care and related sectors to continue enforcing mandatory COVID-19 vaccination policies in the absence of government mandates and the decision goes even further to state the policies may be necessary due to the employer's obligations to their employees' health and safety.

Context is critical to determining whether a vaccination policy is reasonable. Arbitrators will review the applicable collective agreement along with the statutory obligations of the employer, and consider the workplace, and health information available to the parties. Employers should consider and review the available science on COVID-19 and vaccinations when implementing or revising vaccination policies.

The full decision is available on CanLII at The Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), 2022 CanLII 78088.

The Firm gratefully acknowledge the assistance of Joanna Strozak, an Articling Student in the firm's Toronto office.

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