October 10, 2022
Three-Dose Vaccination Policy Deemed Reasonable in Long-Term Care Homes

In the recent decision of Regional Municipality of York v. Canadian Union of Public Employees, Local 905 (Long Term Care Unit), an Ontario Arbitrator found that a mandatory vaccination policy (the “Policy”) – which required long-term care home employees to receive three-doses of the COVID-19 vaccine – was reasonable. The Arbitrator even found that the employer had a positive obligation to impose the Policy, despite revocation of the government directive (the “Directive”) mandating vaccination policies in long-term care homes.

Background

On May 31, 2021, Ontario issued a Directive that operators of long-term care homes must have a mandatory vaccination policy in place by July 1, 2021. On July 1, 2021, in accordance with the Directive, the Regional Municipality of York (the “Employer”) implemented a mandatory vaccination policy requiring employees to be fully vaccinated by November 1, 2021.

On December 31, 2021, the government announced that it required all workers in long-term care homes to have three-doses of the vaccine by January 28, 2022 (this deadline was extended to March 14, 2022). The Employer amended its Policy to reflect this change.

On March 14, 2022, the government revoked its Directive. Despite this significant change by the government, the Employer continued to enforce its three-dose vaccination Policy.

On June 15, 2022, the Canadian Union of Public Employees (the “Union”) filed a policy grievance with respect to the three-dose mandatory vaccination policy, arguing that the policy was inconsistent with the collective agreement and was unreasonable since it was no longer supported by the Directive. The Employer maintained that the Policy was reasonable and in accordance with its statutory obligations under the Occupational Health and Safety Act (the “OHSA”) and the Fixing Long-Term Care Act (the “FLTCA”). It also argued that the Policy was consistent with the information available from the Ontario Science Table which reported that vaccines are the best defence against getting and spreading COVID-19.

General Legal Principle

The Arbitrator relied on the test set out in a previous decision (“KVP test”) to assess an employer’s rules and policies that affect employees’ individual rights. The KVP test requires that a policy or rule satisfy the following conditions:

(1)    It must not be inconsistent with a collective agreement;

(2)    It must not be unreasonable;

(3)    It must be clear and unequivocal;

(4)    It must be brought to the attention of the employees affected before the employer can act on it;

(5)    The employee(s) concerned must have been notified that a breach of such rule could result in their discharge if the rule is used as a foundation for discharge; and

(6)    Such a rule must be consistently enforced by the employer from the time it was introduced.

Decision

The Arbitrator found that the three-dose requirement was reasonable, rejecting the Union’s argument that the Policy did not meet parts (1) and (2) of the KVP test.

With respect to part (1) of the test, the Arbitrator did not see any inconsistency between the Policy and the collective agreement. Further, the Arbitrator stated that in reading the collective agreement, it required the Employer to take reasonable precautions to protect the health and safety of its employees, an obligation which arises out of both the collective agreement, the OHSA, and the FLTCA.

With respect to part (2) of the test, although the Arbitrator accepted that the individual employees who chose not to comply with the Policy had “real and serious interests,” including the right to bodily integrity, the Arbitrator concluded that the Employer’s interests should be given more weight. The Policy was reasonable as the Employer made every effort to promote a safe and healthy work environment as per its collective agreement obligations. Moreover, the Employer fulfilled its obligations under the OHSA [i.e. to “take every precaution reasonable in the circumstances for the protection of a worker”] and the FLTCA [i.e. to operate its long-term care homes so that its residents “may live…in…safety”].

The Bottom Line

This decision follows the trend among Arbitrators to uphold mandatory vaccination policies, in particular, in high-risk sectors such as long-term care homes, despite the absence of government mandates. This decision goes even further to state that vaccination policies may be necessary due to employers’ legislated health and safety obligations.

However, context is crucial in determining whether a vaccination policy is reasonable. For example, in other workplace settings where employees work remotely and there is no specific problem or significant risk related to an outbreak or infection, then it could be deemed unreasonable to implement a mandatory vaccination policy. Instead, a more reasonable less intrusive alternative could be that employees undergo rapid antigen testing (when they have to go into the office).

As we head into the fall, COVID-19 cases may rise, thus there may still be a need for vaccination policies in the workplace. Contrary to popular belief, the pandemic isn’t over yet! Nevertheless, employers should remain flexible with respect to accommodation requests, given the fact that most government mandates have been revoked. Further, employers should continue to monitor any government updates/restrictions that may be implemented in the coming months.

At Hyde HR Law, we offer expert legal advice on implementing or revising COVID-19 vaccination policies, other COVID-19 related issues, and can answer any question relating to workplace law generally. Please do not hesitate to contact us.