The wait is over – judicial guidance on employer vaccination policies arrives

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On August 5, 2021, Prime Minister Trudeau announced that he had asked the clerk of the Privy Council to look at mandatory vaccinations for federal employees. In the three months since that announcement, we have watched as businesses across all industries and sectors established varying forms of mandatory vaccination policies. The wait then began to see how judges and arbitrators would approach these new workplace rules. However, it would appear that our wait for judicial guidance is now over.

Over the last several weeks, judges and labour arbitrators have issued a flurry of decisions considering the enforceability of mandatory vaccination policies. Not surprisingly, the key takeaway for employers from these early cases is that the analysis of whether an employer’s mandatory vaccination policy will be legally enforceable will turn on the specific facts of the case.

The court injunction cases:

While we are still waiting to have a court decision on the merits of an employer vaccination policy, the courts have issued several decisions in response to injunctions brought by employees to prevent the enforcement of these policies pending a hearing before an arbitrator.

In Blake v. University Health Network, 2021 ONSC 7139, the Ontario Superior Court of Justice initially granted the unionized plaintiffs an interim injunction to preserve the employment status quo and halt the enforcement of the hospital network’s mandatory vaccination policy. Under the policy, employees who were not fully vaccinated by October 22, 2021 would be dismissed. However, on October 28, 2021, the Court dissolved the interim injunction on the basis that the unionized plaintiffs did not have standing to pursue the matter before the courts. With respect to non-union employees, Justice Dunphy noted that it was hard to see how any employee who is not in a union could allege irreparable harm arising from threatened termination of employment. In those circumstances, while the employee is not entitled to get their job back, they are entitled to money.

Similarly, in Amalgamated Transit Union, Local 113 et al v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658, the Ontario Superior Court of Justice declined to grant interim injunctive relief preventing employers from enforcing their mandatory vaccination policies pending the results of the grievance arbitration process. Under the TTC policy, unvaccinated employees who did not have an approved exemption would be placed on unpaid leaves of absence beginning on November 21, 2021; if they remained unvaccinated their employment would be terminated effective December 31, 2021. Sinai Health’s policy required its employees to be fully vaccinated by December 9, 2021, failing which their employment would be terminated.

In dismissing both injunctions, Justice Akbarali clarified the “harm” at issue for the impacted employees. In Justice Akbarali’s view, the employer policies were not “forcing” employees to get vaccinated; rather, the employees were being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other. On that basis, arguments and evidence regarding the safety of the vaccines was not relevant to the issue at hand. Further, with respect to the TTC case, Justice Akbarali held that failing to grant the injunction would not result in any irreparable harm to the employees or the arbitration process. Moreover, the balance of convenience (i.e. which party would suffer greater harm from the granting or refusal of the injunction) tipped in favour of the employer. To this end, Justice Akbarali noted that cases have recently begun to rise in Toronto; the TTC’s ridership includes vulnerable people; and the TTC has experienced outbreaks.

Finally, in Wojdan v. Canada, 2021 FC 1244, a group of employees from the Core Public Administration of the Federal Government sought an interim injunction staying the operation of the “Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police” issued by the Treasury Board of Canada. The Federal Court dismissed the motion noting that, despite the fact the Vaccination Policy came into effect on October 6, 2021, the employees waited until November 11, 2021 to commence the action and seek interim injunctive relief. As a result, the Court accepted the employer’s argument that the employees’ delay in bringing this matter before the Court was a sufficient basis to refuse the request for discretionary, equitable relief.

While the above-noted cases did not finally decide the issue of whether vaccination policies are legal and enforceable, given that the courts did not grant an injunction stopping the implementation of the vaccination policies, on balance the decisions are positive for employers.

The labour arbitration decisions:

Unlike the court injunction cases which do not directly deal with the merits of the employer vaccination policies, the following labour arbitration cases do provide some guidance on the actual enforceability of employer vaccination policies

1. United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. (Von Veh)

Brief Facts

  • This case involves a security guard company operating under a Collective Agreement.
  • Paragon has approximately 450 client sites in Ontario and the majority of these clients implemented their own vaccination policies for employees and contractors.
  • Paragon issued a COVID-19 Vaccination Policy that required employees to be fully vaccinated by October 31, 2021.
  • Employees were required to declare vaccination status. Paragon threatened “serious consequences for anyone who has failed to comply.”

Arbitrator’s Decision

  • Policy was enforceable.
  • The Occupational Health and Safety Act provides that an employer must take "every precaution reasonable in the circumstances for protection of its worker."
  • The Collective Agreement has a provision concerning mandatory vaccines ("the employee must agree to receive such vaccinations or inoculations which are agreed to by the parties") which was contemplated prior to COVID-19. The Arbitrator found that Paragon promulgated "reasonable rules and regulations to be observed by the employees" based on the Collective Agreement.
2. Power Workers’ Union v. Electrical Safety Authority (Stout)

Brief Facts

  • The Electrical Safety Authority, which regulates and promotes electrical safety in Ontario, implemented a vaccination policy that requires all employees to be vaccinated or otherwise risk discharge or to be placed on administrative leave without pay.
  • Union brought a grievance against the policy arguing that it is an over-reach of management powers and is unreasonable.
  • ESA previously had a policy in place that allowed employees who did not voluntarily disclose their vaccination status to be tested on a regular basis.
  • Vast majority of ESA employees have voluntarily been vaccinated (88.4%); most of the work undertaken by ESA employees can be done remotely; no outbreaks of COVID-19 in the workplace

Arbitrator’s Decision

  • Policy was unenforceable to the extent that employees may be disciplined or discharged for failing to get fully vaccinated. Policy was also unreasonable at this time by placing employees on an administrative leave without pay if they do not get fully vaccinated.
  • Context is critical when assessing the reasonableness of a workplace rule/policy that may infringe on an employee’s rights.
  • The Arbitrator reasoned that there are two different types of workplaces:
    • High Risk: In workplaces that involve high risk settings (people are sick or elderly or children who cannot be vaccinated) then mandatory vaccination policies may be reasonable.
    • Low Risk: In workplaces where employees can work remotely and there is no significant risk related to an outbreak , infections, or significant interference with the employer’s operations then a reasonable less intrusive alternative than mandatory vaccines should occur (i.e. mix of testing and vaccination). The Arbitrator found that the ESA falls under this second category of workplaces and, therefore, found it unreasonable to have a mandatory vaccination policy.
3. Power Workers’ Union v. Ontario Power Generation (Murray)

Brief Facts

  • Under policy unvaccinated individuals are required to participate in rapid antigen testing once per week for an initial orientation period, followed by twice per week, with 48 hours between tests.
  • An employee who refuses to participate in the testing program will be placed on an unpaid leave of absence.
  • If the employee does not change their mind and agree to participate in the testing program after a period of 6 weeks, that employee’s employment will be terminated for cause.

Arbitrator’s Decision

  • Testing unvaccinated employees is reasonable.
  • Arbitrator ruled that employees who have not confirmed that they are fully vaccinated are required to self-administer the rapid antigen test on their own time and the cost of the testing is borne by the employer; employees are not entitled to compensation for the time spent in the administration of the test or for time spent on reporting the results.
  • Arbitrator ruled that employees who refuse to get vaccinated or submit to regular testing can be sent home on an unpaid leave pending completion of the discipline process.
  • In Arbitrator’s view, unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they present to their co-workers – individuals who are dismissed for choosing not to be tested are very likely to find termination upheld at arbitration.
  • Employer could restrict access to workplace gym to those individuals who are fully vaccinated.

Key takeaways for employers:

While the case law and regulation of mandatory vaccination policies is likely to evolve as the pandemic continues, these early decisions do provide some helpful guidance for employers:

  1. Unions are unlikely to succeed with injunctions to prevent the enforcement of employer vaccination policies in unionized workplaces pending grievance arbitration: To this point, the courts have been clear that the essential character of these disputes lies within the ambit of collective agreements and, therefore, the unions do not have standing to seek injunctive relief. However, even if the courts were to exercise their inherent jurisdiction and consider the merits of the injunction, the courts have ruled that, thus far, the mandatory vaccination policies do not result in irreparable harm to the employees and the balance of convenience favours employers.
  2. The enforceability of the mandatory vaccination policies may depend on the facts of the workplace (low risk or high risk for COVID-19) and the text of the particular policy: The three labour arbitration cases summarized above arise from different facts and lead to different results. That said, in each case, arbitrators considered the relative risk posed by having unvaccinated workers in the workforce. Moreover, it is important to note that even in the ESA case, where the arbitrator struck down parts of the employer’s vaccination policy, he left the door open to revisit the policy as the pandemic continues and the workplace situation further unfolds.
  3. In certain situations, employers may be able to dismiss employees for failing to comply with an employer’s vaccination policy: While none of the labour arbitration cases dealt with the grievance of an employee who had been dismissed due to their failure to comply with the employer’s vaccination policy, the arbitrator in the OPG case indicated that the termination of an employee’s employment for failing to comply with a vaccination policy could be upheld. Again, the facts of the situation will be critical and the employer’s case strengthened where the employee is dealing with vulnerable populations and the workplace is considered to be high risk for transmission.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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