Many employers are wondering whether their mandatory COVID-19 vaccination policies will be upheld in court. The answer is simple: it depends.

The answer depends on many factors, such as the employment relationship, the nature of the work, the content of the policy, and our ever-evolving knowledge about COVID-19.

Recent decisions in unionized workplaces may shed some light on how various factors will affect whether a mandatory vaccination policy will be upheld or not.

The actual employment relationship and the nature of work is an important factor for deciding whether a certain mandatory policy is reasonable. In a recent labour arbitration decision, United Food And Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd (“Paragon“), Arbitrator Von Veh, upheld the employer’s vaccine policy. He noted that according to their collective agreement, if an employee is assigned to a client site where specific vaccination or inoculation is required, the employee must agree to receive such vaccination or inoculation. The majority of the employer’s clients have also implemented their own vaccination policies. As a result, employees and contractors must be fully vaccinated in order to work or remain working at these client sites. This was a contributing factor for the arbitrator to uphold the mandatory vaccine policy.

The arbitrator in Paragon also noted a previous case (St. Michael’s Hospital v Ontario Nurses’ Association) where an annual influenza vaccine and wearing of masks policy was held unreasonable, as, among other things, COVID-19 is more infectious and deadly than seasonal influenza. As the Omicron variant is grabbing headlines, this ever-evolving virus may further tilt the scale of deciding the reasonableness of a mandatory vaccine policy.

In Ontario Power Generation v The Power Workers’ Union (“PWU”) Arbitrator Murray upheld the employer’s COVID-19 vaccination policy. The policy in PWU required employees to either be vaccinated or submit to testing twice a week. The policy required the employees to bear the testing costs, and the time spent testing was unpaid. Employees who refused to comply were subject an initial leave of absence followed by a termination with cause. Arbitrator Murray concluded that disciplinary penalties for unvaccinated employees who refused to test were reasonable because it was minimally invasive. However, Arbitrator Murray noted that, due to the employer’s size, it was reasonable that they should cover the testing costs, but was not obligated to pay employees for the testing time. It appears that the approach of a combined vaccine policy will be viewed more favourably by decision makers.

The arbitrator in Bunge Hamilton Canada v UFCW, Local 175 (“UFCW”) also upheld the employer’s vaccination policy. In that case, the arbitrator considered a vaccination policy that required employees provide full proof of vaccination within 76 days. If they failed to do so, or were not vaccinated, they would be placed on an unpaid leave of absence, with the potential to be terminated with cause. Arbitrator Herman found that the health and safety risks posed by COVID-19 warranted a disciplinary measure of an unpaid leave. However, they did not go so far as to say termination with cause was justified, but only that a policy where termination with cause is possible is reasonable.

On the contrary, in another recent labour arbitration decision, Electrical Safety Authority and Power Workers Union (“ESA“), Arbitrator  Stout, found the employer’s mandatory vaccine policy unreasonable.  The arbitrator’s decision was based on factors that specifically contradicted the decision in the Paragon case. The arbitrator pointed out,

“I need only state that this award (i.e., Paragon) arises in a different context involving a different union and a different employer (a security company whose employees perform all their work at third-party sites) and specific language in the applicable collective agreement that requires employees to receive a specific vaccination required at an assigned site (see art. 24.05).”

In ESA, the content of the vaccine policy also proves to be fatal to its reasonableness. Unlike many other combined vaccine policies, where unvaccinated employees are given the choice of rapid testing, remote working, or other accommodations, the employer in ESA gave no alternative to their employees. Their policy required the employees to be fully vaccinated, unless they were exempted under human rights law. The arbitrator noted:

“I have no evidence that these concerns have manifested themselves in any actual problems in the workplace that cannot be reasonably addressed under a policy that provides for a combined vaccination or testing regime or other reasonable means… mandatory vaccinations is not the only reasonable response at this time and in these circumstances… In my view, disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, is unjust.”

Had this employer opted for a combined vaccine policy, where reasonable alternatives are available, their vaccine policy may have become reasonable. It suggests when a reasonable alternative to mandatory vaccination, such as rapid testing,  could have been available, the employer will have a hard time justifying disciplining or discharging an employee with cause simply for not being vaccinated.

More recently, in Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220 (“Chartwell”) Arbitrator Misra struck down portions of the employer’s mandatory vaccination policy permitting automatic termination due to non-compliance with the policy.  The policy stated that employees who were not fully vaccinated would be placed on unpaid leave or terminated. In Chartwell, the Collective Agreement stated the Union must agree to modifications of “existing rights, privileges, benefits, practices and working conditions” and, in this case, the employer failed to do so. Further, the policy’s specific wording permitted termination without the employer satisfying the just cause standard, which contravened the Collective Agreement. Essentially, the policy’s specific wording on termination permitted the employer to automatically terminate the employee due to non-compliance with the policy without establishing just cause. Consequently, the termination option in the policy violated the Collective Agreement. Notably, the arbitrator did not state whether failure to comply with the policy amounted to just cause.

The above decisions, while in unionized workplaces, will affect non-unionized workplaces as well but some considerations may vary. However, it is expected that the general principles will be similar that whether a vaccine mandate will be upheld depends on the specific context of the policy. It will be a case-by-case decision with no easy answers to employers.

As such, employers should exercise caution when implementing mandatory vaccination policies, especially when they are trying to terminate employees with cause for not following the vaccination policy. A vaguely drafted workplace vaccination policy or one that does not account for specific accommodations could be costly for employers.

 

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