Various questions arise from the competing interests of employees and employers when dealing with mandatory vaccination policies. While there were labour arbitration decisions relating to influenza and other vaccines, until very recently, there were no decisions on vaccine policies in the context of COVID-19 . Among the cases that are starting to emerge, two labour arbitration decisions released in the last few weeks offer guidance to employers wondering how decision-makers might decide the issue of “How does an employer balance an employee’s privacy rights and the right to bodily integrity with the employer’s legal obligations to protect its workers and the public in the context of a pandemic?”

Electrical Safety Authority and Power Workers’ Union

The Electrical Safety Authority and Power Workers’ Union (“ESA”) decision out of Ontario was released on November 11, 2021. In this case, the arbitrator found the employer’s vaccination policy to be unreasonable to the extent that employees could be disciplined or discharged for failing to get fully vaccinated. The arbitrator also found it unreasonable, at this time, to place employees on administrative leave without pay if they did not get fully vaccinated. The arbitrator explained that these conclusions regarding the reasonableness of the vaccination policy could change as the COVID-19 situation unfolds in the coming weeks and months.

In assessing the vaccination policy, the arbitrator applied the legal test from a well-known labour arbitration decision referred to as “KVP”. In short, the KVP test requires that an employer policy or rule satisfy the following conditions:

• It must not be inconsistent with the collective agreement.
• It must not be unreasonable.
• It must be clear and unequivocal.
• It must be brought to the attention of employees affected before the company can act on it.
• The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
• Such rule should have been consistently enforced by the company from the time it was introduced.

The heart of the issue before the arbitrator was the reasonableness of the vaccination policy, considering that employees could be disciplined or discharged for failing to get fully vaccinated.

In assessing the policy’s reasonableness, one of the factors the arbitrator considered was the health risks in the workplace. The arbitrator noted that in certain workplace settings where vulnerable populations are present (e.g. people who are sick or the elderly or children who cannot be vaccinated), mandatory vaccination policies may not only be reasonable but may also be necessary to protect those vulnerable populations.

However, the arbitrator noted that “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”, a reasonable, less intrusive alternative, such as a testing policy, may be adequate to address the risks.

Nevertheless, the arbitrator emphasized that the situation is fluid and continues to evolve. What is reasonable today may not be reasonable tomorrow, depending on how the pandemic continues to evolve.

In this case, the arbitrator found that the employer had not demonstrated any difficulties in protecting the workplace previously when it utilized a combined vaccination and testing regime. More specifically, the arbitrator noted he was not provided with:

• any analysis of any workplace dangers or hazards associated with the ESA’s concerns;
• any analysis or any substantial interference with the ESA’s business; or
• any evidence that the ESA’s concerns had manifested themselves in any actual problems in the workplace that could be reasonably addressed by other reasonable means.

While noting the employer’s concerns regarding the potential spread of COVID-19 as legitimate, the arbitrator concluded that based on what had been presented at arbitration, those concerns did not, at this point, justify imposing a mandatory vaccination regime contemplating discipline or discharge.

UFCW, Canada Local 333 and Paragon Protection Ltd.

The decision in UFCW, Canada Local 333 and Paragon Protection Ltd. (“Paragon”), was released on November 9, 2021. This case dealt with a policy grievance filed by the union against a security company, Paragon, regarding its COVID-19 vaccination policy.

The vaccination policy required employees to be vaccinated but allowed them to apply for exemptions on health or religious grounds. The arbitrator noted that Paragon employed over 4,400 security guards assigned to approximately 450 client sites throughout Ontario. The majority of those clients had implemented their own vaccination policies for their employees and contractors. A significant factor in this case is that the collective agreement between Paragon and the union contained specific language requiring employees to receive specific vaccinations required at an assigned site.

Against this factual backdrop and having reviewed the parties’ positions concerning the KVP test, the arbitrator upheld Paragon’s policy, concluding that it was reasonable.

Key Takeaways

The ESA decision serves as a caution for employers considering a vaccination policy to be careful in coming to conclusions about the risks of COVID-19 before analyzing their concerns within their particular operation and considering whether these concerns will manifest themselves in workplace problems that cannot be addressed by other means or solutions. Employers who have a vaccination policy in place will want to be mindful of the importance of evidence relating to the workplace hazards associated with Covid-19 and the impacts these had or could have on the employer’s operation should it become necessary to provide justification. In any event, it must be kept in mind that the outcome turns on the specific facts of a case and could be influenced  by a variety of factors, including the broader impact of the pandemic that has been different in each province and territory.

The Paragon decision does not include a detailed analysis of workplace dangers, hazards, interference caused by COVID-19 in the workplace. Still, the particular context in which the employer operated (all work conducted at 440 client sites throughout Ontario), along with the particular collective agreement provisions and policy at play, appears to have satisfied the arbitrator that the vaccination policy was reasonable.

Although the above decisions arose in the unionized context, they offer some guidance to employers operating in non-unionized workplaces. Notably, if an employee challenges an employer’s actions taken under a vaccination policy, it is expected that the analysis will look at whether the employer’s actions were reasonable within the context of the particular workplace.

Field Law has the knowledge and experience to assist employers with questions around vaccination mandates and proof of vaccination. If you have any questions, contact Joël Michaud or any member of Field Law’s Labour + Employment Group. You can also tune into our complimentary webinar on Mandatory Vaccination Policies here.