Ontario Arbitrator Determines COVID-19 Vaccination Policy was Reasonable
In a recent case, an Ontario arbitrator upheld an employer's COVID-19 Vaccination Policy as reasonable, enforceable, and compliant with the province's Human Rights Code and Occupational Health and Safety Act.
While a number of Ontario employers have either implemented such policies or contemplated doing so, this case provides insight into how such mandates may be viewed when placed in front of a legal decision-maker.
Overview of the Case
In United Food and Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd, the union filed a policy grievance after the employer implemented a mandatory COVID-19 Vaccination Policy ("the Policy") requiring all employees to be vaccinated by October 31, 2021. More specifically, the union alleged that the Policy violated their collective agreement with the employer, as well as Ontario's Human Rights Code. As such, the union's view was that the Policy was unreasonable.In response to the union's grievance, the employer defended its vaccination policy by stating that it was a necessity.
The employer was a security company that employed approximately 4,400 security guards. Moreover, these security guards watched over hundreds of client properties throughout the province. The majority of the employer's clients had already implemented their own mandatory vaccination policies for on-site workers, as well as contract employees, such as security guards. This meant that a number of businesses that used the employer's security guards required exclusively vaccinated personnel. Furthermore, even clients who did not have vaccination mandates in place made it clear to the employer that such policies would soon be implemented. At the same time, many employees advised the employer that they had concerns about working with others who were not vaccinated.
It is also important to note that the collective agreement in question gave the employer the power and authority to make, enforce, and alter reasonable rules which were to be observed by its employees.
Finally, the employer also implemented a COVID-19 Vaccination Exemption Policy whereby employees would be exempt from vaccination requirements for approved health or religious reasons.
The Ontario Human Rights Commission's Statement on Vaccine Mandates
On September 22, 2021, the Ontario Human Rights Commission ("the Commission") released a statement about COVID-19 vaccine mandates. The Commission stated that it is generally permissible for employers to implement vaccine mandates under the Human Rights Code in order to protect customers and workers. However, employers must also ensure that individuals who cannot be vaccinated for Code-related reasons (such as a disability-related issue) are reasonably accommodated. Employees who choose not to be vaccinated because of a personal preference need not be accommodated under the Human Rights Code.
As will become clear shortly, the Commission's guidance was an important consideration in the arbitrator's decision.
Important Considerations for Unionized Employers
For unionized employers wishing to implement workplace rules without union approval, the rule in question must satisfy the following test:
It must not be inconsistent with the collective agreement;
It must not be unreasonable;
It must be clear and equivocal;
Prior to implementation, the rule must be brought to the attention of the employees(s) affected;
If a breach of the rule is used to justify the discharge of an employee, the worker must have been notified at an earlier time that breaking the rule in question could have such a result; and
The rule should have been consistently enforced from the time the employer implemented it.
As should be clear, unionized employers have a number of important factors to consider when deciding whether or not to mandate certain policies. This is true, regardless of whether that policy relates to vaccines, or any other rule which will impact employees.
The Employer's COVID-19 Policy was Upheld
The arbitrator found the employer's COVID-19 Vaccination Policy to be reasonable, enforceable, and compliant with the applicable collective agreement, as well as Ontario's Human Rights Code and Occupational Health and Safety Act. The arbitrator also stated that the employer's COVID-19 Exemption Policy was reasonable, enforceable, and compliant with the Human Rights Code.
In arriving at these conclusions, the arbitrator determined that the employer's vaccination policies struck an appropriate balance between respecting the rights of unvaccinated employees and providing a safe environment for staff, clients, and members of the public who would interact with the security guards.
Finally, the arbitrator concluded that the employer successfully took every reasonable precaution to fulfill its responsibility of protecting the health and safety of its workers under the Occupational Health and Safety Act.
The Bottom Line
Regardless of whether an employer is unionized or non-unionized, there are a number of important factors to be considered when structuring a mandatory vaccination policy.
If you have any questions about a mandatory vaccination policy, or would like a dedicated team of experts to draft such a policy for you, please do not hesitate to contact us.