Today we have insights from Norm Keith [1], a management-side employment and labor lawyer for KPMG.

The COVID-19 pandemic continues with over 5.1 million deaths worldwide and over 29,000 in Canada. [2] Tens of thousands of workers have contracted the deadly virus at work and filed workers’ compensation claims, including a number of worker deaths across Canada. COVID-19 is both an Occupational Health and Safety (“OHS”) as well as a Public Health crisis. Early responses of governments included lockdown regulations, physical distancing and masking mandates, and physical changes to workplaces.

As various COVID-19 vaccine was rapidly developed and given emergency approval by the leading drug evaluator, the FDA in the United States, Health Canada also reviewed and approved the COVID-19 vaccines, for use in Canada. The highly effective, low-risk vaccines became the clear, obvious, and compelling way through and out of the pandemic. 

Before the recent federal election, the Prime Minister showed leadership in establishing mandatory proof of vaccine mandates for federally civil servants and federally regulated workers. Similar actions, however, were not taken by the provinces. This caused many provincially regulated employers to take strong leadership positions on the value of vaccinations of their employees to keep them safe at work. Hence the wave of business leadership introducing mandatory proof of vaccination policies for workplaces with congregate work settings.

Union leadership generally deferred or failed to support employer vaccine mandates fully. Therefore, in unionized workplaces, anti-vaxers and irrational objections to the COVID-19 vaccine found shelter in their union’s refusal to support management’s unilateral vaccine mandates in the form of court actions and grievance. We are now seeing the first decisions of arbitrators.

COVID-19 vaccination policies have become widespread in various sectors; a pair of arbitral decisions provide guidance to employers as they navigate these untested legal waters. These decisions underscore the challenges to the best practice of mandatory proof of vaccination policies, the lack of understanding of the importance of Occupational Health & Safety Legislation in dealing with the pandemic, and the arguments that employers must prepare to deal with when mandatory vaccination policies are challenged.

The first decision in Canada was the application for an injunction to temporarily suspend the termination of certain University Health Network (“UHN”) employees who refused to comply with the mandatory COVID-19  mandatory policy for health care workers. On October 29, 2021, the Ontario Superior Court of Justice dissolved an interim injunction issued on October 17, 2021. Justice Dunphy held that claims made concerning the alleged “overreach” or “unreasonableness” of the exercise by an employer of the management rights clause in an existing collective agreement are not the proper subject of a claim in the Supervisor Court of Justice and therefore are not subject to the interim relief of an interim or permanent injunction.[3]    

The second decision was Paragon Protection Ltd. (“Paragon”), where arbitrator Von Veh considered the United Food and Commercial Workers Union, Canada Local 333’s (“UFCW”) grievance alleging that Paragon mandatory vaccination policy. On September 3, 2021, Paragon introduced its policy which required that all employees be vaccinated by October 31, 2021. Failure to do so would result in an employee’s removal from a job site, following which they would either be transferred to another job site or placed on an unpaid leave of absence. Paragon’s policy was implemented in part due to the requirements of its clients. Paragon employs 4400 security guards who are members of the UFCW bargaining unit and who are distributed to approximately 450 client worksites across Ontario.

Paragon submitted that its policy was fully compliant with Article 24.05 of the collective agreement, which expressly required employees to agree to vaccination where third-party clients required the same. Paragon also argued that the policy complied with the KVP requirements and was reasonable in light of the client-facing nature of its security guard employees’ work. Paragon argued the policy was necessary for it to meet its obligations under the Ontario Occupational Health and Safety Act (the “OHSA”) to ensure a safe workplace.

The arbitrator held that the personal preference of an employee to refuse vaccination did not override the scientific evidence regarding the efficacy of the COVID-19 vaccinations. The arbitrator was careful to underscore that this did not in any way detract from legitimate requests for accommodation under the Code, which were appropriately accounted for by the policy.

The arbitrator also cited Paragon’s legal obligation under section 25(2)(h) of the OHSA, which obligates Paragon to take “every precaution reasonable in the circumstances for the protection of its worker.” Overall, the arbitrator ordered only minor revisions to the policy – as not all employees had access to a family physician, the policy had to be amended to allow other medical professionals to support an employee’s request for an exemption.

In a surprising, contrary outcome, Arbitrator Stout heard the Power Workers’ Union’s (“PWU”) grievance alleging that the Electrical Safety Authority’s (“ESA”) mandatory vaccination policy (“Policy”) was unreasonable. The PWU also alleged that the policy violated the employees’ privacy rights and right to bodily integrity. Before October 5, 2021, the ESA’s policy allowed employees to either disclose their vaccination status or submit to regular COVID-19 testing. On October 5, 2021, the ESA amended its policy to require mandatory vaccination. Testing would not be a possible alternative unless an employee were granted accommodation according to the Code.

The arbitrator accepted that the ESA had onerous safety obligations under the OHSA. However, the arbitrator found that safety obligations under the OHSA had to be considered in light of the specific workplace at issue. The arbitrator failed to consider the legal obligations of workers under section 28 of the OHSA to ensure that they did not work in a manner that may endanger themselves or another worker. The arbitrator found that an employer must demonstrate real risk or business need to justify mandatory vaccination under threat of discipline or discharge. In view of the transmissibility and lethality of the COVID-19 virus, the efficacy of the Health Canada approved vaccines, and the seriousness of the employer’s legal risk under the OHSA, the arbitrator’s decision to set aside the mandatory proof of vaccine policy is remarkable and somewhat difficult to justify rationally.

The failure of provincial governments to mandate vaccines as a condition of employment under the OHSA, with appropriate human rights laws exemptions and privacy protection, has created confusion and gives rise to the potential of conflicting arbitration decisions, as indicated above. Arbitrators generally have little experience in reviewing and applying Canadian OHS laws and medical science relating to pandemics. The courts have no jurisdiction or experience with the vast number of quasi-criminal prosecutions against employers, including COVID-19 related prosecutions. Interestingly, the Ontario OHSA prevails over all other statutes, as an example, was not referenced in either of the abovementioned arbitrations.

When developing a mandatory proof of vaccine policy or dealing with legal objections to such policies, expert OHS legal counsel is required to ensure that all relevant legal and evidentiary considerations are well presented and argued before arbitrators and courts.

[1] Norm Keith is an Employment law partner and the leading OHS lawyer in Canada, he may be reached at nkeith@kpmg.ca 

[2] https://covid19.who.int/

[3] Blake v. University Health Network, 2021 ONSC 7139