INTRODUCTION

As the COVID-19 pandemic evolves since its early onset in Canada in March 2020, employers throughout British Columbia have implemented mandatory vaccination policies for their employees. But with the increasingly persistent anti-mask and anti-vaccine rhetoric across British Columbia and the country, the question remains: are these mandatory vaccination policies legally enforceable? And accordingly, can an employee be properly dismissed from their job for failing to get vaccinated?

While most judicial decisions to-date comment only on injunctions pursued by employees, which aimed to prevent the enforcement of vaccination policies pending their respective legal challenges, courts and labour arbitrators have begun issuing decisions that consider the substantive validity and enforceability of employer-implemented vaccination policies.

Generally, while these decisions are in favour of mandatory vaccine policies, they provide uncertain guidelines to employers on how to legally implement such policies. Courts and labour arbitrators have continued to stress that the validity of a mandatory vaccine policy is often dependent on the specific workplace. In other words, there is no hard rule for employers to follow that a vaccine policy always will or will not be legally enforceable.

Most decisions to date have been arbitration decisions in the context of unionized employees. While these rulings will not bind non-union employers or proceedings in the British Columbia Supreme Court, some of the rationale maybe indicative of how courts will analyze vaccination policies, and as such are a useful tool to all employers looking for guidance.

THE TREND IS ENFORCEABILITY, AND LABOUR ARBITRATORS ARE FORTHRIGHT ABOUT IT

In United Food and Commercial Workers Union 333 v. Paragon Protection Ltd. ["Paragon Protection"], Ontario Arbitrator Von Veh ultimately found that the employer's vaccination policy was enforceable due to its compliance with the union's Collective Agreement and with Ontario's Occupational Health and Safety Act, RSO 1990, c. O.1("OHSA"). In doing so, Arbitrator Von Veh did not hesitate to comment on the superiority of scientific considerations versus personal perceptions when navigating the COVID-19 pandemic.

In Paragon Protection, the employer (operating a security company), which had employees at approximately 450 client sites, implemented a mandatory vaccination policy for its employees, largely as a result of its clients mandating their own policies for their respective employees and contractors. The arbitrator found that the employer's policy both (a) complied with their Collective Agreement article requiring mandatory vaccines (that was implemented long before the onset of COVID-19), and (b) complied with OHSA section 25(2)(h), which requires employers to take "every precaution reasonable in the circumstances for protection of a worker". In reaching this conclusion, Arbitrator Von Veh notably gave weight to larger public health policy concerns, noting that the "personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations".

Arbitrator Von Veh is not alone in his in obiter commentary regarding the pandemic, science, and public health. Similarly, in Ontario Power Generation v. Power Workers Union ["Ontario Power Generation"], Arbitrator Murray commented on the validity of vaccination policies that threatened termination as a consequence of failure to vaccinate. In Ontario Power Generation, the union employer implemented a policy requiring unvaccinated employees to be tested twice per week or risk a six week suspension and later, dismissal. Arbitrator Murray first noted that testing unvaccinated employees was a prima facie reasonable alternative to mandatory vaccination. He then concluded that the employer's unpaid suspension of employees for failing to vaccinate and test was also a reasonable policy.

The basis for this conclusion came from Arbitrator Murray's determination that vaccines and testing constituted a basic "fit to work" requirement of their employment. Specifically, he noted that employees who are refusing to test are "refusing to take the necessary and reasonable step of taking a minimally intrusive test that would demonstrate they are fit to work and do not present an unnecessary risk to their co-workers". Importantly, while Arbitrator Murray was not called on to comment on the validity of the policy's risk of termination for failure to comply, the arbitrator noted that it was "very likely" that such termination clause would be upheld.

While the aforementioned decisions and most of the case law on this topic have come out of Ontario, British Columbia arbitrators are keeping with the general pro-vaccination trend in the law. For example, Arbitrator Ken Saunders in CKF Inc. and Teamsters Canada, Local 213 (COVID Testing), 2022 CanLii 15973 (BC LA) ["CKF"],found a manufacturing plant's "vaccinate or test" policy to be enforceable for two reasons: (1) it provided reasonable exemptions for medical or religious reasons, and (2) there was a testing option for those who chose to be unvaccinated.

While Arbitrator Saunders' decision in CKF suggests that the existence of an alternative to vaccination (i.e. testing) is one of the essential elements to make a vaccine policy reasonable and enforceable, the recent decision of BC Hydro and Power Authority v. International Brotherhood of Electrical Workers, Local 258, 2022 CanLII 25764 (BC LA) ["BC Hydro"] marks the first British Columbia case to consider a mandatory COVID-19 vaccination policy that did not provide regular testing as an alternative to vaccination. This policy was upheld.

In BC Hydro, the employer implemented a vaccine policy to all its employees that did not allow for testing as an alternative to vaccination. Arbitrator Somien considered the reasoning in CKF and ultimately agreed that "if appropriate alternative measures were available to BC Hydro that would accomplish the same health and safety goals as the Policy, then less intrusive measures may have been appropriate". However, the arbitrator considered the specific context within which the BC Hydro policy was implemented, namely that most employees were unable to work regularly from home, many employees worked in industrial camp settings (designated high risk by the Provincial Health Officer), employees often travelled far distances and shared vehicles, the employees were essential service providers in British Columbia, and finally, BC Hydro had a history of COVID-19 outbreaks in the workplace. As a result of these factors, Arbitrator Somien ultimately concluded that in this case, testing was simply not a reasonable equivalent to mandatory vaccination and as such, the vaccination policy was enforceable.

CONTEXT MATTERS: THE CASE LAW THAT HOLDS VACCINE POLICIES UNENFORCEABLE

In contrast to the mounting case law in support of mandatory vaccination policies, Arbitrator Stout in Electrical Safety Authority v. Power Workers' Union, 2022 CanLii 343 (ON LA) ["ESA"] found an employer vaccination policy to be partially unenforceable and unreasonable based on the circumstances of the specific workplace. As a result, Arbitrator Stout found that employees in this case could not be disciplined or discharged for failing to vaccinate. This analysis robustly highlights and recognizes the importance of the factual circumstances of each particular workplace.

In ESA, the employer (Electrical Safety Authority), implemented a vaccination policy wherein employees could be put on unpaid leave or be terminated. Of particular note, a majority of the employees were voluntarily vaccinated and most of the work by ESA employees could be done remotely.

The arbitrator noted that "context is extremely important" when assessing the reasonableness of a workplace rule like a vaccination policy and considered the two different kinds of workplaces: high risk and low risk. In that regard, high risk workplaces involve a setting where there are vulnerable populations (i.e. people are sick, elderly, or children who cannot be vaccinated). In these settings, vaccination policies may not only be reasonable but required. Meanwhile, low risk workplaces exist "where employees can work remotely and there is no problem or significant risk to an outbreak, infections, or significant interference with the employer's operations". In these contexts, other less intrusive alternatives may be adequate to address the risks.

Arbitrator Stout ultimately determined that ESA fell under the low risk category given the high vaccination status of the group, the ability of employees to work remotely, and the absence of a COVID outbreak at the workplace. The Arbitrator was satisfied that other measures, such as remote work, testing, and wearing PPE, could effectively mitigate the risk in this low risk workplace. As such, it concluded that the vaccination policy was unreasonable to the extent that it threatened discharge or discipline.

While Arbitrator Stout's decision is only one of the very few decisions finding a vaccination policy unenforceable, his method of analysis (namely, the high risk versus low risk workplaces) has formed the basis for other decisions wherein arbitrators have found vaccination policies enforceable due to the workplace being "high risk".

As canvassed above, BC Arbitrator Somien in BC Hydro explicitly considered the specific workplace constraints of BC Hydro employees in upholding the electrical utility company's mandatory vaccination policy. More specifically, Arbitrator Somien considered the history of outbreaks, inability to work remotely, and intermingling of employees while travelling long distances to form part of the justification for vaccination of these workers. Similarly, Arbitrator Mark Wright in Unifor Local 973 v. Coca-Cola Canada Bottling Limited, 2022 Canlii 25769 (ON LA) distinguished a Coca-Cola bottling facility from the Electrical Safety Authority in ESA, finding that the Coca-Cola workplace was comparatively much higher risk. Unlike ESA, Coca-Cola workers could not work remotely, there was evidence that the "vaccinate or test" policy was ineffective in their workplace, and the issue arose in the context of the more contagious Omicron variant.

KEY TAKEAWAYS:

  • the enforceability of mandatory vaccination policies will likely be workplace-specific
  • workplaces typically range from low to high risk environments, and vaccination policies are more likely to be justified in higher risk workplaces
  • occupational health and safety requirements may provide justification for employers to implement mandatory vaccination policies
  • employers should be mindful of employee privacy rights when collecting and storing vaccination data

CONCLUSION

Ultimately, while the overall trend in the case law is overwhelmingly supportive of mandatory vaccination policies, with some arbitrators going so far as to outwardly rebuke anti-vaccination sentiments as being anti-science, determining the validity of a workplace vaccination policy still remains a fact-specific inquiry. Labour arbitrators have demonstrated that workplace factors such as the client-facing nature of the work, remote work capabilities, and histories of previous COVID-19 outbreaks can and will determine the validity of a vaccination policy.

As such, further case law considering these specific factual circumstances will likely continue to evolve over the coming months. Accordingly, employers ought to take caution and seek legal advice before implementing such a policy

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.