THE EMPLOYERS' EDGE
HIT ME WITH YOUR BEST SHOT: MANDATORY VACCINATION POLICY SURVIVES CHALLENGE AT ARBITRATION
In one of the first decisions to be released in Ontario on the subject, an arbitrator has upheld a mandatory vaccination policy that was challenged by the Union as being unreasonable. While this decision is not necessarily the final word on the matter, it bodes well for all those employers who have taken a similar approach. As we have advised employers throughout the Pandemic (and, indeed at all times), any policy you develop and implement has to be reasonable in the circumstances: and that is just what Arbitrator Von Veh found with respect to the employer’s Mandatory Vaccination Policy in UFCW Canada Local 333 and Paragon Protection Ltd.
The Employer, Paragon Security implemented a Vaccination Policy on September 3, 2021 that required all employees to be fully vaccinated by October 31, 2021. Any employee who did not follow the policy would be disciplined in accordance with the company’s existing disciplinary policies. Importantly, the company policy included an exemption: those who could not be vaccinated could be required to work at alternative sites, undergo additional testing, and/or be required to take an unpaid leave of absence.
The Union, UFCW Local 333, filed a grievance shortly thereafter, alleging that the Policy violated both the Collective Agreement and Ontario’s Human Rights Code. At issue in the Collective Agreement were the Management Rights clause and a specific clause addressing vaccination/inoculation. The Union’s arguments were threefold:
- Under the Health Care Consent Act there must be consent to receive a “treatment”;
- The policy required employees to “do it or else” be removed from the jobsite which the union categorized as unreasonable;
- The Union also submitted that the policy was unreasonable as it did not conform with the “rules” established at law for the establishment of an employer policy in a unionized workplace [commonly cited from the 1965 case of: Re Lumber and Sawmill Workers Union, Local 2357 and K.V.P. Company Ltd. 16 LAC 73]. The rules state that:
“A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites:
- 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 the employee 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”
In response, the Employer argued that many of their clients had already implemented their own vaccination policies for their employees and contractors. As a result, the company’s vaccination policy was created out of necessity as they are a client-/customer-facing business and need employees to be vaccinated in order to gain access to the client’s premises. The Employer further argued that other employees had concerns about the safety of working with co-workers who had not been vaccinated.
In upholding the Vaccination Policy, Arbitrator Von Veh found that the Policy complied with the management rights clause in the Collective Agreement that allowed the Employer to “make, enforce, alter, from time to time, reasonable rules and regulations to be observed by the employees,“ because it:
- Struck a balance between the rights of employees who do not wish to be vaccinated and creating/maintaining a safe workspace for staff, clients and members of the public with whom the employees interact; and
- Was an exercise by the Employer in meeting its obligations under section 25(2)(h) of the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker.”
He also determined that the Vaccination Policy correctly incorporated the vaccination/inoculation principles of the existing specific article in the Collective Agreement.
The Arbitrator also dismissed the Union’s Human Rights argument, applying the considerations of the Ontario Human Rights Commission to find that an employee’s personal preferences of the COVID-19 vaccine were insufficient grounds for an exemption, going so far as to state:
There is a wealth of scientific information available on the pandemic and COVID-19. I find that personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.
Arbitrator Von Veh also dismissed the applicability of case law from the health care sector related to “Vaccine Or Mask” policies (specifically addressing the St. Michael’s Hospital Award from2018), saying that the St. Michael’s case “most certainly did not deal with pandemic conditions which currently exist” and included a comparison of the key features of influenza and COVID-19 in the Decision.
Takeaways for Employers
While this will not be the last decision to be rendered on this subject, employers can take heart that a properly-considered, well-drafted Vaccination Policy can and will be upheld where that Policy is reasonable. As always, what is reasonable will depend on the circumstances in which the Policy is being implemented: if you are considering implementing a Vaccination Policy, or your current Policy is being challenged, we can help you get it right. Contact the team at CCPartners with any questions regarding Vaccination Policies for your workplace.