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2022.01.19

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THE EMPLOYERS' EDGE

A Complete Rundown of COVID-19 Vaccine Policy Decisions in Ontario

Updated: September 30, 2022 

In recent months, the most common inquiry we have received from employers relates to the legality of COVID-19 Vaccine Policies in Ontario. Our response generally begins with “it depends” – before asking if the employer is in a unionized or non-unionized setting. This particular delineation has become increasingly important because the courts have yet to weigh in on the legality of such policies in non-unionized workplaces in Ontario. In fact, the only guidance in this regard which employers may rely on, comes from the unionized sphere, where we have seen a number of challenges to mandatory COVID-19 Vaccine Policies, with varying levels of success.

Our team at CCPartners has worked tirelessly to keep employers up-to-date on these decisions in a timely manner. However, these decisions are often highly contextual and complex, making it challenging for even the most diligent employer to remain apprised of the ongoing state of this issue. With this in mind, we have prepared this blog to provide a chronological rundown of all the COVID-19 Vaccine Policy decisions which have been rendered in Ontario to date. Be sure to revisit this blog in the coming months, as it will continue to be updated as further decisions continue to be released.

SEPTEMBER 26, 2022: Parmar v Tribe Management Inc., 2022 BCSC 1675 (CanLII)

The COVID-19 Vaccination Policy:

The Employer notified employees that it would be implementing a mandatory vaccination policy on October 5, 2021 by attaching it to an email to all employees. The email advised that the policy was based on guidance from the CDC and provincial public health offices. The policy required all employees to become fully vaccinated by November 24, 2021. The policy provided for medical or religious exemptions and allowed extra time for those employees who were unable to meet the deadline. It also allowed the policy to be modified based on public health guidelines and best practices regarding COVID-19 as the vaccines are changing as new information becomes available. The employer reserved the right to modify the policy at any time at its sole discretion to adapt to changing circumstances. The employer also implemented a hybrid work model which would allow employees to work partly in the office and partly at home. However, the hybrid model was not a COVID mitigation strategy but a retention tool for employees. Therefore, it was not an alternative to vaccination. The employee argued that she did not want to be vaccinated as she had numerous family members and acquaintances who were negatively affected by the vaccine. The employee was placed on an unpaid leave of absence due to her refusal to be vaccinated. The employee argued that the unpaid leave was a constructive dismissal.

The Decision:

When considering whether the employee was constructively dismissed, the Court noted that there were several characteristics of her leave of absence that made it clear that it was not a termination. First, that it was only for a period of three months and was subject to review. Second, that the employee continued to receive benefits. Last, that the employer never replaced the employee, the intent was for her to fulfill a new role as a valued employee. Based on those circumstances, the Court found that the it was the employee who resigned. The Court additionally noted that the contract of employment expressly required the employee to follow workplace policies. Therefore, the pertinent issue was whether the policy itself was reasonable.

The Court found that the policy was reasonable and lawful. The Court noted that the employee’s personal beliefs and autonomy did not entitle her to potentially harm fellow employees. The Court found that when assessing a policy, they are not to ask whether it was a perfect policy but instead the Court should be considering whether it was a reasonable approach at the time it was actioned. In its finding, the Court also took note of the severity of the virus and the efficacy of the vaccine to reduce negative outcomes. As well, that vaccine policies were the prevailing approach at the time it was introduced. The Court also recognized that the employer was obligated under the Workers Compensation Act to ensure the health and safety of its employees.

AUGUST 30, 2022: Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), 2022 CanLII 78173 (ON LA)

The COVID-19 Vaccination Policy:

The Employer originally put their vaccination policy in place when a directive was issued by the Ontario Government to implement a vaccination policy in all long-term care homes. The Government later announced that it would require all workers in long-term care homes to have three doses of the vaccine. The Employer followed this updated directive and amended its policy to reflect the change. The Directive was revoked by the Government on March 14, 2022. The Employer chose to proceed with its policy beyond the date of revocation.

The Decision:

Arbitrator Raymond found the policy to be reasonable. Responding to the Union’s first claim that the policy was inconsistent with the Collective Agreement, Arbitrator Raymond found that there was nothing within the Collective Agreement that created an inconsistency between the Agreement and the policy.

Arbitrator Raymond also dismissed the Unions second claim that the policy is unreasonable due to the revocation of the Directive and the improper balance between the policy and employee interest. While the Arbitrator acknowledged that the employees’ interest of bodily integrity are real and serious, the Employer had no choice but to make a mandatory vaccination policy as obliged by the Government Directive. When the Directive was revoked, the Employer reasonably chose to maintain the policy. The decision to continue was reasonable as the Employer did so to protect the health and safety of employees and residents, as required by their statutory obligations. In addition, the workplace itself was particularly vulnerable as the workplace is a long-term care home with residents that could have been seriously affected by the virus.

Finally, Arbitrator Raymond dismissed the Unions final argument that the Employer failed to consult the Union about the vaccination policy. Arbitrator Raymond did note that it was concerning that the Employer chose not to consult the Union. However, he determined that this could not form a basis for a Collective Agreement violation unless there is language in the agreement that requires consultation, which is not the case for this agreement. Additionally, the relevant test is for unilaterally imposed policies. If there was consultation, the policy would not qualify as unilateral. Therefore, the policy was found to be reasonable and enforceable.

JUNE 17, 2022: FCA Canada Inc. v Unifor, Locals 195, 444, 1285, 2022 CanLII 52913 (ON LA)

The COVID-19 Vaccination Policy:

The policy required, in part, that employees, contractors, suppliers, and visitors were required to be fully vaccinated with two doses of a two-dose vaccine in order to attend the workplace. If an employee did not abide by this requirement of the policy, they would be placed on unpaid leave of absence, and possibly terminated for non-compliance. At hearing, the Union argued that recent scientific studies had shown that two-dose vaccines were no longer effective against transmitting COVID (specifically with regard to the vaccines’ effectiveness against the Omicron variant). Hence, the Union argued that the vaccination policy be deemed unreasonable, and employees who are on unpaid leave be fully compensated.

The Decision:

The Arbitrator took care to review previous decisions upholding the reasonableness of workplace COVID-19 vaccine policies. In particular, she rejected the idea that employees had a blanket entitlement to remain unvaccinated without consequence. She observed that there was no “right” to remain unvaccinated and remain in active employment. However, it was a factual finding based on the available studies that the Arbitrator found compelling. She decided that “Emerging evidence does indicate that a two-dose vaccine regimen provides significantly less protection against infection from Omicron and its sub-variants than with prior variants.” Arbitrator Nairn declared the policy to be of no force or effect as of June 25, 2022.  However, she left the door open for the Employer to revise the policy rather than vacate it altogether.


The COVID-19 Vaccination Policy:

On December 13, 2021 the Company, Maple Leaf Foods, handed out an initial vaccine requirement memorandum after partaking in multiple conversations with the Union to advise them of the Company’s intention to roll out the vaccination policy. On January 28, 2022 the Company released its COVID-19 Vaccination Policy. The Policy stated the same information that was in the December 13, 2021 memorandum communicated to the employees that they must be fully vaccinated by March 31, 2022 or they would be placed on unpaid leave and would be subject to further discipline, up to and including termination. Accommodation would be provided to employees who were not able to take a vaccine based on a protected ground under human rights legislation. The Union argued that the policy was unreasonable and unenforceable for four reasons. First, that there were other reasonable alternatives available to the Company to protect the health and safety of the employees. Second, that the competing interest are improperly balanced as the Company’s interest in protecting the health and safety of its employees and its business was outweighing the employees interest in protecting their privacy and preserving their bodily autonomy. Third, that COVID restrictions were being reduced and the threat of COVID had diminished greatly and that the requirement of mandatory vaccination is no longer justifiable or reasonable. Lastly, that subjecting employees who refuse vaccination to discipline, and possibly termination, is unreasonable.

The Decision:

Arbitrator Chauvin dismissed the grievances and held that the Policy was reasonable and enforceable. The policy was considered reasonable when considering the nature of the workplace. The employees were essential workers and had to interact very closely together. Despite taking significant measures to avoid infection, the company experienced COVID outbreaks that had major consequences for the Company and the community’s food supply. Arbitrator Chauvin dismissed the Union’s second argument by finding that the policy appropriately balanced the interest of both parties since it provided for accommodation and only senior level personnel had access to vaccination status information. Moreover, the implementation of the policy was found to be reasonable as the Company clearly communicated its intentions to the Union in advance. The policy and the consequences of non-compliance was also clearly communicated to employees. The discipline aspect of the policy itself was considered reasonable as it allowed for Union grievance and was to be decided on a case-by-case basis according to a “just cause” standard. It is important to note that Arbitrator Chauvin spoke on the amount of time an employer should wait until they turn to discipline and he stated that while a fact-specific analysis is required, it is helpful to inform employees that they could be disciplined or discharged if they remain unvaccinated for two months.

APRIL 4, 2022: Fraser Health Authority v British Columbia General Employees’ Union

COVID-19 Vaccine Policy Details:

The Provincial Health Officer of BC issued an Order (the “PHO Order”) requiring all health authority employees to obtain vaccination against COVID-19 in order to be eligible to work. The only exemption was on narrow medical grounds and there was no exemption for religious reasons.

The Grievor had expressed her strong objection to vaccination on a number of occasions. Upon meeting with the Grievor, she indicated that she objected to vaccination on religious grounds, and that she felt the PHO Order was unlawful and violated the Charter of Rights and Freedom. However, the Union confirmed there is no religious discrimination component to this grievance. Consequently, the Grievor was placed on a three (3) week unpaid leave of absence, before she was terminated for cause.

Decision:

The Arbitrator began by clarifying that this case was not about the validity of the PHO Order or the benefits or drawbacks of vaccination. In fact, the Union did not put the PHO Order or policy into question. Rather, this was a grievance focused on whether the employer had just cause to terminate the Grievor in the context of the PHO Order.

The Grievance was dismissed. In rendering this decision, the Arbitrator noted, “There is no dispute that the Grievor advised she will not get vaccinated and has no intention of ever doing so. There is no exemption available to her under the Order. Simply put, there was no path forward for the Grievor for continued employment.” Further, taking into consideration “the existence of a government order with no expiry date” the employer “was not required to place the Grievor on a leave of absence of indefinite duration, where there was no foreseeable prospect of her being eligible to work at the time.” To conclude, the Arbitrator noted that the employer had “presented compelling operational reasons for its approach to the Grievor’s employment and that no lesser alternative was reasonably available.

APRIL 4, 2022: Extendicare Lynde Creek Retirement Residence and UFCW, Local 175

COVID-19 Vaccine Policy Details:

The employer, a retirement home, implemented a mandatory COVID-19 Immunization Policy (the “Policy”) requiring all employees to be fully “immunized” within approximately six (6) weeks, failing which, unless able to present a valid exemption, the employees would be placed on an unpaid leave of absence and “may be subject to additional corrective action up and including termination of employment.”

Decision:

The parties asked the Arbitrator to: one, issue a bottom line award in the interest of receiving a timely decision and two, to consider the reasonableness and lawfulness of the Policy, in the context of the Ontario Government and other public health authorities recently reducing or eliminating various vaccination and other COVID-19 related requirements that had been in place for employees, contractors and visitors of retirement homes, long-term care homes, and other facilities and venues.

The Policy was upheld. In an expedited decision, the Arbitrator found that the Policy, “has been and remains a reasonable workplace rule, consistent with the Collective Agreement, the Occupational Health and Safety Act and the Retirement Homes Act […] even in the context of the Ontario Government and other public health authorities recently reducing or eliminating various vaccination and other COVID-19 related requirements.” Further, the Arbitrator indicated that the Policy’s definition of “fully immunized” requiring employees to receive all booster vaccinations recommended by health authorities, whether now or in the future, was also a reasonable workplace rule.

MARCH 22, 2022: The Toronto District School Board and CUPE, Local 4400

COVID-19 Vaccine Policy Details:

The employer, the Toronto District School Board (“TDSB”), one of the largest and most diverse school boards in Canada, implemented a mandatory COVID-19 Vaccination Policy and Procedure on September 14, 2021. The Policy required all employees with direct contact with staff or students at a TDSB workplace be fully vaccinated against COVID-19. Employees were required to provide evidence of this or establish a valid exemption by November 1, 2021, failing which, they would be placed on a non-disciplinary leave of absence without pay. Students and their families were not subject to the Policy.

Decision:

The Grievances were dismissed. The Arbitrator noted that the experts who were consulted in this matter were “largely agreed. Vaccination is the best way of keeping people and workplaces safe from infection.” As such, considering the nature of the workplace, the Arbitrator found that the TDSB had adopted appropriate and reasonable safeguards to best meet their obligations under the Occupational Health and Safety Act. Accordingly, the Arbitrator found that the Policy was an “entirely reasonable exercise of management rights” and did not violate Section 7 (Life, liberty and security of the person) of the Charter of Rights and Freedom, as alleged.

MARCH 17, 2022: UNIFOR Local 973 and Coca-Cola Canada Bottling Limited

COVID-19 Vaccine Policy Details:

The employer implemented a mandatory COVID-19 Vaccination Policy requiring all employees to be fully vaccinated within approximately sixty-seven (67) days, failing which, unless able to present a valid exemption, the employees would face discipline, including termination. The Policy was a national policy covering all union and non-union employees across the country.

Decision:

The Policy was upheld. The Arbitrator found that the Policy, “establishes a reasonable balance between an employee’s interest to privacy and bodily integrity, and the Employer’s interest in maintaining the health and safety of the workplace.

In making this decision, the Arbitrator noted specifically: the Policy was clearly communicated, the consequences for not being vaccinated were progressive, and no employee had been subject to discipline for non-compliance. In terms of reasonable alternatives, the Arbitrator noted that due to the nature of work, none of the employees could work remotely and the majority worked in close contact with each other or members of the public. Further, the Arbitrator distinguished this matter from previous cases by indicating that the “situation is dynamic” and quoted Arbitrator Stout from a previous decision where he stated, “The one thing we have all learned about this pandemic is that the situation is fluid and continuing to evolve. What may have been unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.

FEBRUARY 7, 2022: Chartwell Housing REIT (The Westmount, The Wynfield, The Woodhaven and The Waterford) v. Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer, a conglomerate of long-term care homes, updated its a COVID-19 Vaccine Policy to require employees to be fully vaccinated within approximately forty-seven (47) days, failing which, they would be placed on an unpaid administrative leave of absence, or “may have their employment terminated.

Decision:

The Policy was struck down. The Arbitrator found that that changes to the previous Policy were too extreme. The older Policy allowed employees to remain unvaccinated but continue employment if they complied with the education, testing and PPE requirements. The new Policy no longer offered those alternatives and for the first time, threatened termination for unvaccinated workers. As such, the Arbitrator determined that these significant changes, made without any consultation with the Union, violated the collective agreement.

FEBRUARY 4, 2022: Power Workers’ Union v Elexicon Energy Inc.

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring employees to be fully vaccinated within approximately three (3) months, failing which, they would required to complete COVID-19 vaccine awareness training and placed on an unpaid leave of absence. Depending on the circumstances, the Policy states an employee may also be subject to disciplinary action up to and including termination of employment.

Interestingly, the Policy considers “full vaccination” status to be two doses but also requires additional vaccinations as recommended by governmental and/or healthcare authorities, for example, any third or “booster shots”. As such, the Policy actually required employees to receive three doses of the vaccination.

Decision:

The Policy was upheld – with caveats. The Arbitrator determined that the Policy would apply to all employees – except those who had been working exclusively from home and had no expectation or requirement of returning to the workplace in the near future, and for those who worked exclusively outdoors. The Policy, however, would apply to those who even partially worked inside.

JANUARY 31, 2022: Hydro One Inc. and Power Workers’ Union

COVID-19 Vaccine Policy Details:

The employer introduced a COVID-19 Vaccination Policy providing approximately one months’ notice that employees would be required to provide proof of vaccination status or submit to regular rapid antigen testing, at their own expense. The Union argued that the employer violated the Collective Agreement and the Grievors should not have lost wages for non-compliance and instead, should have been able to work from home, where possible.

Decision:

The Grievance was dismissed. First, the Arbitrator found that the Grievors were all given reasonable advance notice about the requirements of the Policy. Second, the Arbitrator indicated that it is “not necessary to provide remote work where a reasonable alternative has already been provided to those employees who refuse to disclose their vaccinated status.” Further, the Arbitrator confirmed that by enforcing these measures, the employer was complying with their obligations under the Occupational Health and Safety Act, to take reasonable precautions to protect the health and safety of their employees and the public that they serve. As such, the Arbitrator determined that the Policy is a “reasonable compromise that respects employee rights and balances the various important interests.

JANUARY 4, 2022: Bunge Hamilton Canada v UFCW, Local 175 (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring employees to provide proof of full vaccination within approximately seventy-six (76) days. The Policy indicated that employees who were not fully vaccinated and/or did not intend to provide proof of fully vaccinated status would not be allowed on site and would be put on an unpaid leave of absence, pending a final determination on their employment status (up to and including termination of employment).

Decision:

The Policy was upheld. The Arbitrator found that the public health and safety risks associated with being unvaccinated were held to justify the placement of individuals on unpaid leave of absence for failing to provide proof of vaccination. Further, the employer’s close interaction with their sister job-site, which fell under a different jurisdiction, made the implementation of starkly different vaccination requirements to be impractical. Additionally, the Arbitrator was in favour of the Policy’s language which did not stipulate that employees would be immediately suspended or terminated as a result of non-compliance. Rather, the Arbitrator noted that the employer’s verbiage was open-ended, allowing for individual circumstances to be considered in the application of the Policy.

NOVEMBER 30, 2021: Canada Post Corporation and Canadian Union of Postal Workers

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring all employees to be fully vaccinated or partially vaccination failing which, unless unable to be vaccinated, the employees would be placed on an unpaid leave of absence. The Union was particularly concerned with the fact that the Policy failed to offer a reasonable alternative to vaccination, including specifically the option to undergo a self-administered rapid antigen test.

Decision:

This decision is particularly unique because two (2) expert witnesses were called, one by each party, to discuss the efficacy of vaccines versus rapid testing. In sum, their evidence established the following:

  • Vaccination is safe and effective;
  • There is “significantly lower” risk of becoming infected with COVID-19 if a person is vaccinated;
  • Vaccination represents the most effective strategy to reduce transmission in a workplace such as Canada Post;
  • The ideal frequency of testing is unknown and early infection might not be detected with rapid antigen testing; and
  • Rapid antigen testing cannot be considered equivalent to vaccination as a means of reducing transmission.

Accordingly, the Arbitrator upheld the Policy, and indicated that it was “clear on the evidence that the most efficacious means of accomplishing the necessary health and safety objectives is through mandatory vaccination” and a “cease and desist order would result in an added risk to employees and the public, however, of severe illness.

NOVEMBER 12, 2021: Ontario Power Generation v The Power Workers’ Union (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring employees to either be vaccinated or submit to rapid antigen testing on a twice per week basis, Unvaccinated employees were required to pay for their rapid antigen tests and were not paid for the time expended to administer these tests. Employees who refused to comply would be subject to further discipline, including an initial temporary leave of absence followed by a potential termination for cause.

Decision:

The Policy was upheld. The Arbitrator found that imposing disciplinary penalties for unvaccinated employees who refused to participate in the rapid antigen testing program was justified in the context of the global pandemic, as it was a minimally invasive compromise. However, after taking note of the employer’s large stature, the Arbitrator indicated that it was reasonable for them to cover the cost of such tests for unvaccinated employees (but not the time taken to administer them).

NOVEMBER 11, 2021: Electrical Safety Authority and Power Workers’ Union (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer updated their COVID-19 Vaccine Policy to require all employees to disclose their vaccination status and/or provide confirmation of full vaccination within a less than sixty (60) days. This Policy provided no testing alternative for those that were unvaccinated or chose not to disclose their vaccination status, and those who refused to comply would be subject to further discipline, up to and including termination.

Decision:

The Policy was struck down and remitted back to the employer for review and amendment. The Arbitrator indicated that the new Policy was unnecessarily stringent, when considering the employer’s unchanged circumstances at the time of updating the Policy. For instance, the majority of work being performed for the employer was effectively being done remotely, and that employees had a right to continue to work remotely pursuant to their collective agreement. In this regard, the employer had failed to demonstrate any new difficulties that had arose, hindering them from achieving their workplace health and safety obligations under their previous more flexible disclosure and testing policy. Lastly, the Arbitrator found that the discipline and discharge features of the new Policy were “premature” and “unjust” in the circumstances.

NOVEMBER 9, 2021: UFCW Canada Local 333 and Paragon Protection Ltd. (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring all employees to be fully vaccinated within approximately sixty (60) days. The Policy included an exemption: unvaccinated employees could be required to work at alternative sites, undergo additional testing, and/or be required to take an unpaid leave of absence.

Decision:

The Policy was upheld. The Arbitrator found that the Policy struck a balance between the rights of employees who do not wish to be vaccinated and creating/maintaining a safe workspace. This in turn allowed the employer to meet 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.

Takeaways:

We could likely write an entire article on the key takeaways which we have gleaned from these decisions. However, above all else, it is important to remember that assessing the enforceability of a COVID-19 Vaccine Policy is highly fact-specific and contextual exercise. Policies are more likely to be upheld where there are reasonable alternatives to vaccination offered to employees who do not wish to comply, such as regular rapid antigen testing or remote work. Whereas more stringent policies are only likely to be upheld in workplaces where reasonable alternatives simply do not exist as a result of extenuating circumstances or due to the nature of work.  The challenges for employers continue, however, as antigen tests are currently unavailable and various levels of governments appear to be backtracking on previously rigid governmental requirement to be fully vaccinated.

The best way to ensure that your COVID-19 Vaccine Policy is compliant, is to contact one of our lawyers today to obtain personalized guidance and support. We are available to answer any questions you may have and conduct a review of your Policy to provide recommendations regarding whether you need to consider updating or amending your Policy in the circumstances.

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