We have been eagerly awaiting a court decision on workplace mandatory COVID-19 vaccination policies. While we have yet to see a decision from the court specifically dealing with the validity of these policies, throughout November 2021, a number of arbitration decisions came out with respect to vaccine policies in a unionized setting. Two of the arbitration decisions found the workplace COVID-19 vaccination policies reasonable, while one did not.

United Food and Commercial Workers Union, Canada, Local 333 and Paragon Protection Ltd

Several of Paragon Protection Ltd.’s (“Paragon”) clients implemented mandatory vaccination policies for employees and contractors. These contractors included security guards employed by Paragon. As a result, on September 3, 2021, Paragon implemented its own COVID-19 vaccination policy, requiring employees to be fully vaccinated by October 31, 2021. It stated that failure to comply with the policy could result in disciplinary action, up to and including termination for just cause. The union filed a grievance. The arbitrator found Paragon’s COVID-19 vaccination policy to be reasonable, enforceable and compliant with the Ontario Human Rights Code (the “Code”) and the Occupational Health and Safety Act (“OHSA”).  Taking into consideration the Ontario Human Rights Commission’s policy statement, the policy was found compliant with the Code as it allowed for certain exemptions. The policy was also found to reasonably balance the rights of employees who were not vaccinated, and respecting a safe workplace for employees, clients and the public. In implementing the policy, the employer had met its obligation under the OHSA to take “take every precaution reasonable in the circumstances for the protection of a worker.” The arbitrator found an employee exemption based on personal subjective perception was not sufficient given the abundance of scientific information available on the pandemic and COVID-19. This did not negate exemptions related to grounds protected by the Code. The arbitrator further distinguished this case from one that dealt with the influenza vaccine, noting that a case dealing with the influenza vaccine did not arise during a pandemic.

Ontario Power Generation and the Power Workers Union, Re OPG-P-185

In this decision, the arbitrator found the COVID-19 vaccination policy of the employer to be reasonable. The policy required employees to be vaccinated or, if not, to get tested initially once per week and then twice per week with 48 hours between tests. The policy required employees to pay for their own COVID-19 testing. The policy further stated that failing to be vaccinated and/or complete COVID-19 testing would result in the employee being placed on an unpaid leave for six weeks. After six weeks, if an employee did not agree to comply with the policy, they would be terminated for cause. The requirement to test unvaccinated employees was found to be reasonable given the employer’s obligation under the OHSA to take “take every precaution reasonable in the circumstances for the protection of a worker.” However, the arbitrator found the employer should pay for testing, not the employees. On the other hand, the arbitrator held that employees were not entitled to be paid for the time spent testing while not at work. The arbitrator noted that paying employees to be tested may actually disincentive them from getting vaccinated. Suspending employees without pay was found to be reasonable. While there was no decision on whether an employee could be terminated for cause for failing to comply with the policy, the arbitrator did not rule this out.

Electrical Safety Authority and Power Workers Union

In this decision, the arbitrator found the mandatory vaccination policy to be unreasonable, “to the extent that employees may be disciplined or discharged for failing to get fully vaccinated” as well as to the extent the employer put employees on leave without pay. It was found to be reasonable for the employer to request the vaccination status of employees as long as the medical information was provided with consent and adequately protected. The arbitrator made it clear that the decision was made in the context of interpreting the collective agreement. The arbitrator further stated that, in workplaces where the risks are high and there are vulnerable populations, mandatory vaccination policies may be both reasonable and necessary. The arbitrator noted that, in workplaces where employees can work remotely and there is no significant risk of COVID-19, less intrusive measures such as testing, and voluntary disclosure of vaccination status may be sufficient protection for the health and safety of the workplace. However, the arbitrator did state that should the circumstances of the pandemic change, it is possible a mandatory vaccination policy could be reasonable in the future.  The arbitrator commented that the award “should not be taken as a vindication for those who choose, without a legal exemption, not to get vaccinated” and that those individuals were “acting against their own and society’s best interests.”

Take Away

We anticipate getting the benefit of more decisions coming out in the coming months dealing with workplace COVID-19 vaccination policies. While all of these decisions are in the context of a unionized setting, they give us an idea of what legal authorities are thinking and thus how a court may analyze and decide whether a vaccination policy is reasonable. Overall, these decisions suggest that workplace COVID-19 vaccination policies will be upheld in the right circumstances, with an emphasis placed on reasonableness and balancing all of the conflicting legal rights and considerations. As evident from Electrical Safety Authority and Power Workers Union, a contextual approach is likely to be taken based on the circumstances of individual workplaces.

Infections Disease Emergency Leave

On December 7, 2021, the Government of Ontario again extended the “COVID-19 Period” and temporary rules set out in Regulation 228/20: Infectious Disease Emergency Leave. The “COVID-19 Period” has now been extended to July 30, 2022.  For more information on the temporary changes under Regulation 228/20, please see our newsletter from June 2020.