In what are, to our knowledge, the first decisions in Canada regarding the merits of employers’ mandatory Covid-19 vaccination policies, two arbitration cases in Ontario recently considered the mandatory vaccination policies of the Electrical Safety Authority (“ESA”), and Paragon Protection Ltd. (“Paragon”), a private security company. In both cases, challenges to the mandatory COVID-19 vaccination policies (the “ESA Policy” and the “Paragon Policy” and collectively, the “Policies”) were brought to arbitration by the employees’ respective unions, the Power Workers’ Union and the United Food and Commercial Workers Union, on grounds that such Policies violated their Collective Agreements and were unreasonable, among other issues.

SIMILAR LEGAL ARGUMENTS ADVANCED IN BOTH ARBITRATIONS LED TO DIFFERENT CONCLUSIONS BY THE ARBITRATORS

Although several of the arguments advanced by the two unions were similar in these two arbitrations – namely, the inherent unreasonableness of the Policy in question, and that the Policy violated the Collective Agreement – the conclusions of the arbitrators on the validity of the respective Policies differed between the two cases.

The arbitrator in the case of Paragon upheld the Paragon Policy as being valid, finding that such Policy was reasonable, enforceable, and compliant with both the Human Rights Code (Ontario)¹Human Rights Code, RSO 1990, c H.19. (the “Code”) and the Occupational Health and Safety Act (Ontario)²Occupational Health and Safety Act, RSO 1990, c O.1. (“OHSA”). In particular, the arbitrator found that the Policy struck the right balance between the rights of employees who did not wish to be vaccinated while respecting a safe workplace for employees, clients and the public and that it also fulfilled the employer’s duty to take “every precaution reasonable in the circumstances for the protection of its workers” under the OHSA.

In contrast, in the case of the ESA, the arbitrator found that the ESA Policy was unreasonable to the extent that employees could be disciplined, terminated, or placed on an unpaid leave of absence for failing to be fully vaccinated due to his interpretation of the management rights found in the Collective Agreement between the Union and the ESA.

WHY DID THE ARBITRATORS COME TO SUCH DIFFERENT CONCLUSIONS?

It may seem inconsistent that seemingly similar cases would result in two very different findings by the arbitrators on the validity of such Policies. However, there were several distinguishing factors between the two Policies being implemented. For one, the Collective Agreement for Paragon already had a provision, pre-dating COVID-19, requiring that employees be vaccinated where such vaccinations were required at work sites. Moreover, that specific vaccination provision of the Collective Agreement was negotiated at least five years before the start of the COVID-19 pandemic.

In the Collective Agreement for the ESA, however, the arbitrator found no such provision to justify the ESA Policy. Specifically, the arbitrator found that there was nothing in the Collective Agreement that addressed vaccinations; the ESA had not previously required any employee to be vaccinated as a condition of employment; there was no legislated requirement that ESA employees be vaccinated; and there was no prior legal authority to uphold a mandatory employer vaccination rule or policy applicable to all employees, without specific collective agreement language or legislative authority, outside of a healthcare or long-term care setting.

Another key difference between the two cases was that Paragon, as a security company, provided on-site security services to third-party clients, many of whom had already implemented mandatory vaccination policies. In the case of the ESA, the arbitrator found that the “majority” of work undertaken by the ESA employees was remote, and many employees had a right to continue working remotely under the Collective Agreement. The arbitrator also found that the third-party vaccination policies for ESA inspectors to enter third-party premises had not significantly interfered with ESA’s business.

WHAT DOES THIS MEAN FOR EMPLOYERS CONTEMPLATING IMPLEMENTING MANDATORY COVID-19 VACCINATION POLICIES IN THEIR WORKPLACE?

We note that both arbitration awards were in workplaces with unionized employees. In the case of unionized employees, the management’s right to implement mandatory vaccination policies will largely be determined with reference to the scope of management rights and specific wording under the Collective Agreement. Furthermore, we would caution that the arbitrator’s final decision in the case of the ESA Policy should not be interpreted as an absolute “win” for the Union, nor for those opposed to implementing mandatory COVID-19 vaccination policies in either unionized or non-unionized workplaces.

For example, the arbitrator in the case of ESA stated: “I also want to ensure that my decision is not seen as any form of vindication for those who chose, without a legal exemption under the Code, not to get vaccinated. As will be seen, the choice of individual employees not to be vaccinated may result in consequences at a later date and in different circumstances[emphasis added].” The arbitrator also included in his order that the ESA may revise its Policy to indicate that at some point in the future if problems occur in its operations or safety concerns become such that they cannot be adequately addressed by a combined vaccination and testing regime, then with reasonable notice the ESA may place employees on an administrative leave without pay if they are not fully vaccinated.

WHAT FACTORS WOULD A COURT OR ARBITRATOR CONSIDER IN REVIEWING SUCH A POLICY?

Despite the fact that these two decisions were union-related matters, they illustrate some of the factors that a judge or arbitrator may take into account in scrutinizing a mandatory COVID-19 vaccination policy in the workplace, including for non-unionized workplaces. For example:

• the nature of the work being performed by employees, and whether such work could be performed remotely or must be performed on-site;

• whether the workplace involves vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated);

• the degree of risk related to the specific workplace setting in the event of a potential outbreak or infections;

• the degree of risk, or actual occurrence of, a significant interference with the employer’s operations due to having unvaccinated employees;

• whether there is a reasonable, less intrusive alternative to a mandatory vaccination policy to address the risks specific to the workplace;

• whether there is any difficulty protecting the workplace using the less intrusive alternative;

• the history of outbreaks in each workplace;

• the state of the pandemic (due to the fluid nature of the pandemic, a policy that was once reasonable may be unreasonable at a later point in time and vice versa); and

• the reasonableness and proportionality of the policy in question, which involves a legal balancing of interests.

We recommend that all employers, including those with either unionized and non-unionized employees, consult an experienced labour and employment lawyer to help negotiate their legal rights and obligations prior to implementing any mandatory vaccination policies. Whether or not such policies are likely to be upheld as valid is a highly fact-dependent determination that will vary depending on the relevant circumstances and context. This issue is also very likely to be heavily litigated as the pandemic evolves, and as more employers implement their own mandatory vaccination policies. Both judicial and arbitral consideration of this issue will continue over the next several months, and the law will continue to evolve and develop on this point.

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• 1
  Human Rights Code, RSO 1990, c H.19.
• 2
  Occupational Health and Safety Act, RSO 1990, c O.1.