Mark Tector and Katharine Mack

Over the last few months many employers have been implementing COVID-19 vaccination policies in their workplaces. Last week, two Ontario arbitration decisions were released which dealt with the legality of such policies in the unionized workplace. As far as we are aware, these are the first two reported decisions on the subject, and while we expect more decisions to follow, the reasoning in these decisions provides some guidance to employers in both the implementation and enforcement of such policies.

Unfortunately for those seeking certainty on the issue, the two decisions reach opposite conclusions: in UFCW Local 333 v Paragon Protection Ltd,¹ the employer’s policy was upheld, while in PWU v Electrical Safety Authority² the employer’s policy was struck down as being unreasonably broad and far-reaching. Although at first glance the decisions appear to be at odds with one another, there were unique features in both cases that informed the respective outcomes.

The decisions illustrate that each case will ultimately turn on its own facts, and that an employer should not presume its policy will be legally enforceable without first seeking legal advice. This is particularly so in the unionized context, where any policies implemented by the employer will be subject to enhanced scrutiny pursuant to the “KVP Test”, which requires that any policy must be consistent with the collective agreement (among other considerations).

These decisions may be subject to judicial review, and more decisions will inevitably follow which will further inform the issue. What is clear at this time is that, although all employers have obligations under occupational health and safety legislation to take every reasonable precaution to protect health and safety, different workplaces will require different approaches in order to satisfy that duty.

UFCW Local 333 v Paragon Protection Ltd – mandatory vaccination policy upheld

An employer of 4,400 unionized security guards unilaterally implemented a mandatory vaccination policy covering all of its staff. There were no alternative arrangements, such as frequent testing, unless the employee had a human rights-related exemption.

The employer submitted that it had no other choice but to implement the policy, given most of its clients were requiring that all contractors on-site, including security staff, be fully vaccinated. Additionally, other employees raised concerns about working with others who were not vaccinated.

Interestingly, the parties’ collective agreement contained a provision stipulating that if an employee was assigned to a client site where vaccination was required by law or contract, the employee had to agree to receive the vaccine or inoculation, or face reassignment (this provision apparently pre-dated the pandemic).

Arbitrator von Veh held that Paragon’s vaccination policy was properly implemented in fulfilment of its duties under occupational health and safety legislation to maintain a safe and healthy work environment. The arbitrator held that the “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.” However, the arbitrator was also clear that an employer still had to consider bona fide requests for exemptions to the policy pursuant to applicable human rights legislation.

In this case, Paragon’s policy provided for exemption requests, which were to be considered on a “case-by-case basis”, and noted that employees with an approved exemption “may be accommodated to the point of undue hardship.” Paragon’s policy also included a non-exhaustive list of potential accommodation options, including reassignment to different client sites, COVID-19 testing, and being placed on an unpaid leave of absence. The arbitrator held that the policy was a reasonable exercise of management’s rights.

The union relied on a 2018 arbitration decision, Re St Michael’s Hospital and ONA, in which a “vaccinate or mask” policy, which was designed to reduce the spread of influenza at a Toronto hospital, was struck down as unreasonable.  The arbitrator declined to follow St Michael’s, ruling that the broader context of COVID-19 is highly distinguishable from the circumstances at play in that case. This is welcome news for employers – although there is scant pre-existing case law discussing an employer’s ability to implement immunization policies, many of those decisions (which arose in circumstances other than COVID-19, generally in the healthcare context) support an employer’s ability to do so, with St Michael’s being a notable exception. The decision in Paragon Protection Ltd. suggests St Michael’s should not be followed in the context of COVID-19.

While this is an employer-friendly decision which sets precedent in favour of an employer’s right to implement a COVID-19 vaccination policy in order to protect the health and safety of employees, such a right is not unfettered. In this case, there were unique circumstances and provisions in the collective bargaining agreement which informed the arbitrator’s decision. The following decision further illustrates that this issue is nuanced and the outcome must be fully informed by the specific circumstances existing in each workplace.

PWU v Electrical Safety Authority – arbitrator declines to enforce mandatory vaccination policy

In this decision, the employer unilaterally implemented a mandatory vaccination policy covering all of its staff. Under the policy, staff who did not get vaccinated (and who did not qualify for an exemption on human rights grounds) could face disciplinary consequences, including termination, or be placed on unpaid leave. This policy replaced an earlier “vaccinate or test” policy that the employer had in place, to which the union had not objected.

Notably, the vast majority of employees had been working remotely through the pandemic, and many employees had a right to continue working remotely under the collective agreement.  Additionally, there were no provisions in the collective agreement addressing vaccinations, and the employer had not previously required vaccinations from its staff.

Arbitrator Stout found that the employer’s move from a “vaccinate or test” policy to a “mandatory vaccination” policy was unreasonable in the circumstances. Arbitrator Stout ordered that a revised vaccination policy be issued, which would include certain mandated changes.  Although the decision in Paragon Security, described above, was considered, the arbitrator viewed the circumstances as distinguishable. The decision was informed by the arbitrator’s finding that there was no evidence of any actual health and safety problems in the workplace that could not be reasonably addressed by a policy that provided an alternative for frequent testing.

The employer was directed to revise the policy, including to provide a testing option for those who were not vaccinated, and to clearly indicate that employees would not be discharged or disciplined for not vaccinating.

Although the employer had raised that some of its clients required staff members to be vaccinated as a condition of site entry, the arbitrator concluded that the policy could address this by making it clear that unvaccinated employees could not access these sites, without resorting to a blanket vaccination mandate.

The arbitrator also agreed that the employer had the right to collect the vaccination status of each employee, but held that by doing so employees did not automatically consent to the sharing of that information with third-party clients – he determined that employees should have the right to refuse that their information be shared with clients.

All that said, the arbitrator was careful to highlight that the decision was context-specific. Arbitrator Stout noted that the pandemic is rapidly changing and if health and safety problems arose in the workplace, the employer might need to take alternative measures, including placing unvaccinated employees on unpaid leave. He also noted that placing an unvaccinated employee on administrative leave could be permissible in other circumstances, such as in workplace settings where risks are high and there are vulnerable people. The arbitrator also expressly agreed with the outcome in Paragon Security, where there were significant issues with respect to accessing third party sites.

Key takeaways

These decisions indicate that, in certain circumstances (and even in unionized workplaces), the unilateral implementation of mandatory COVID-19 vaccination policies is permissible, provided that:

• The policy is a reasonable measure of ensuring the health and safety of the workplace, striking the right balance between management rights, employee privacy rights, and the provisions contained in the applicable collective agreement. Policies may not be enforceable if less intrusive measures would reasonably address the employer’s concerns;
• The policy must provide for accommodations for those who have exemptions based on protected grounds pursuant to applicable human rights legislation;
• The privacy of employee medical information must be safeguarded and protected. Employers should be mindful of their obligations under applicable privacy legislation in storing this information; and
• Notice of the policy should be provided in advance in order to provide employees with sufficient opportunity to get both doses and complete the recommended waiting period for full immunization.

For non-unionized employers, these decisions also provide some useful insights into the legal considerations other decision makers (e.g. human rights tribunals) may take into account, including in relation to human rights, privacy, and notice to employees.

In practice, drafting a policy which incorporates all of the above factors requires a balanced approach, which would benefit from specific legal advice. Employers seeking to implement a vaccination policy should consult with legal counsel to discuss the implications of these decisions on their specific organizations and jurisdiction.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.

Click here to subscribe to Stewart McKelvey Thought Leadership.

¹ UFCW Local 333 v Paragon Protection Ltd (OLA) (Von Veh).
² PWU v Electrical Safety Authority (OLA) (Stout).