Many employers have implemented mandatory COVID-19 vaccination policies over the last several months. This has prompted a series of legal challenges from both unions and employees. In recent weeks, there have been a number of decisions issued assessing the reasonableness of vaccination policies on the merits and also whether courts or arbitrators should grant requests for injunctions preventing or delaying employers from imposing mandatory vaccination policies, pending the outcome of previously filed legal challenges. In this HR Space bulletin, we focus on the latter category of decisions, an example which is the November 30, 2021 award of Arbitrator Kevin Burkett in Canadian Union of Postal Workers and Canada Post Corporation.1
Canada Post implemented a mandatory vaccination policy that required employees to attest to their vaccination status. Employees that attested to being unwilling to be fully vaccinated or who did not attest to being fully vaccinated as of November 26, 2021 were to be placed on an unpaid leave.
The union brought an urgent cease and desist application before Arbitrator Burkett in which it sought an order that would have prevented Canada Post from, among other things, placing employees on unpaid leave, pending the outcome of a grievance it had previously filed challenging the reasonableness of the policy.
The collective agreement between Canada Post and the union provides for the following five criteria that must be met for the arbitrator to grant the cease and desist application:
- that the evidence discloses a "prima facie" case of the existence of a contravention of the collective agreement or that such a contravention is about to occur;
- the situation is urgent;
- the balance of inconvenience favours the granting of such order;
- that without such order, the consequences of the contravention would be severe and could not be eventually corrected or compensated adequately; and
- that there is no other useful recourse.
The test under the collective agreement resembles the well-established elements of the three-pronged test that a party must establish for injunctive relief in a civil court:2
- there is a serious issue to be tried;
- the applicant will suffer irreparable harm if the injunction is not granted; and
- the balance of convenience weighs in favour of granting the injunction.
The Arbitrator denied the union's application on the grounds that the union failed to meet the necessary criteria for the injunction, including the balance of convenience and irreparable harm elements. In arriving at this decision, the Arbitrator followed the recent Ontario Superior Court of Justice decision in Amalgamated Transit Union, Local 113 et al. Toronto Transit Commission3 and concluded that there would be no irreparable harm suffered by the union's members if the mandatory vaccination policy went into effect. The Arbitrator also concluded that the balance of convenience weighed in favour of the employer, given the public interest in promoting vaccination and reducing the risk of COVID-19 transmission in the workplace.
It is noteworthy that, in reaching this conclusion, the Arbitrator accepted that rapid antigen testing was not an acceptable replacement for vaccination and that vaccination was the most effective means of accomplishing the important health and safety objectives underlying the policy.
Trends in Injunction Proceedings on Mandatory Vaccination Policies
This and other recent decisions that have been issued have made it clear that getting an injunction to stop or delay the implementation of a vaccination policy will be difficult. This is because an injunction is an extraordinary remedy sought to preserve the status quo pending the determination of a legal proceeding on its matters - it is not something to be granted lightly. Based on our review of the cases, the following principles have emerged:
- Union challenges to mandatory vaccination policies are to be determined through the grievance/arbitration process and not the courts: labour arbitrators have been found to have what amounts to exclusive jurisdiction to determine the reasonableness of mandatory vaccination policies in unionized workplaces.
- Potential loss of employment does not constitute irreparable harm: the loss of employment (or the emotional stress associated therewith) does not constitute irreparable harm. To the extent that a policy is later determined to be unreasonable, in whole or in part, any losses can be addressed through an award of monetary damages.
- The balance of convenience generally favours implementation of mandatory vaccination policies if certain factual circumstances are demonstrated: decision-makers have held that the balance of convenience will generally favour the implementation of an employer's mandatory vaccination policy where some or all of the following factors are present:
- the employer can show that it has been vulnerable to workplace outbreaks and positive cases of COVID-19;
- there is a degree of public interaction by employees;
- employees interact with vulnerable populations;
- the nature of any COVID-19 health and safety policies previously in place and their effectiveness; and/or
- whether the implementation of the employer's policy has been encouraged or directed by the local, provincial or federal government.
Takeaways for Employers
These recent decisions are a positive development for employers seeking to implement or enforce mandatory COVID-19 vaccination policies. While these decisions do not address the enforceability of such policies on their merits, they do provide insight into the factual and legal arguments that may both assist and guide employers when responding to future challenges.
1. Canadian Union of Postal Workers and Canada Post Corporation, unreported, November 30, 2021.
2. RJR-MacDonald Inc. v. Canada (Attorney General),  1 SCR 311.
3. Amalgamated Transit Union, Local 113 et al. Toronto Transit Commission, 2021 ONSC 7658
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