In face of the fourth wave of the COVID-19 pandemic, public sector employers and private businesses across Canada have moved to impose vaccine mandates on their workers. The novelty of these mandates has resulted in a wide range of employer policies and programs and the enforceability of vaccine mandates has faced legal uncertainty. Labour arbitrators across Canada have started issuing decision about these employer policies over the last few weeks. AQR Law articled student Arshia Sattari summarizes these below.
Overview
There is currently limited case law in Canada dealing with vaccine mandates and the landscape is rapidly changing. These early decisions flag the relevant considerations for arbitrators when assessing vaccine mandates. The assessments will be highly contextual and fact-specific.
Despite the different outcomes in the cases, all the arbitrators recognized the seriousness of the COVID-19 pandemic, the employer’s duty to ensure workplace safety, and the efficacy of vaccines in preventing workplace infections and outbreaks. However, the fact of a global pandemic is not a carte blanche to violate employees’ bodily integrity, freedom, and privacy rights. Arbitrators will closely examine the nature of the business and the work performed by employees, the history of COVID-19 disruptions in the workplace, the current scientific knowledge and public health guidance in the relevant area, and the language of the applicable collective agreement. They will then engage in a careful balancing of interests, considering all the evidence and context.
At this time, labour arbitrators will likely uphold most policies that provide alternative testing options. However, arbitrators are also willing to uphold stricter vaccine mandates if there is support in the collective agreement for this or when employers demonstrate business needs or real operational disruptions as a result of infections or outbreaks. Only time will tell how the Omicron variant will impact arbitrators’ assessment of vaccine mandates.
Review of Arbitration Awards
United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd., dated November 9, 2021
In this Ontario case, the employer had introduced a policy requiring vaccinations for 4400 security guards working in 450 client sites, with limited medical and religious exemptions. Most of the buildings used by the employer’s clients (where the employees’ work was performed) had introduced their own mandatory vaccination requirements. The collective agreement contained a provision to the effect that employees must either agree to receive vaccinations or inoculations required by their assigned work site or be reassigned to another site.
Arbitrator Fred von Veh upheld the policy and found it reasonable, legally compliant, and enforceable. He considered Ontario’s occupational health and safety laws and the requirement for employers to take every reasonable precaution in the circumstances to protect workers. He also relied on the vaccination provisions of the collective agreement, which were in place prior to the pandemic. The Arbitrator also found that receiving the COVID-19 vaccine remained voluntary for workers. He explained that employees’ personal, subjective perceptions could not override or displace scientific considerations. He concluded that the policy struck a reasonable balance between the rights of employees not to get vaccinated and the employer’s obligation to provide a safe workplace for staff, clients, and members of the public.
Electrical Safety Authority v. Power Workers’ Union, dated November 11, 2021
Another Ontario employer had initially implemented a voluntary vaccination disclosure and testing policy (VVD/T). Under that policy, employees could voluntarily disclose their vaccination status or be tested on a regular basis. The employer subsequently removed the regular testing option and introduced a mandatory vaccination policy with limited human rights accommodations.
Arbitrator John Stout explained that employer-imposed health and safety rules must be reasonably necessary and involve a proportionate response to a real and demonstrated business need. In settings where employees can work remotely, and where there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, reasonable and less intrusive alternatives to mandatory vaccination may be adequate. The Arbitrator acknowledged that regular testing is fallible and is a less effective intervention than vaccination but held that testing remains a reasonable tool in protecting workplaces.
On the facts before him, Arbitrator Stout concluded that the introduction of the mandatory vaccination policy was premature. The workplace had never experienced a breakout; only seven of the more than 400 employees had ever contracted the virus; only two cases may have been work related; and only 14 employees had not disclosed their vaccination status. The employer had not provided an analysis of workplace dangers and hazards or introduced any evidence to demonstrate that the previous VVD/T regime was ineffective. Even though a vaccine mandate was an obvious and simple answer to address the employer’s concerns, it was not the only reasonable response in those particular circumstances.
The Arbitrator directed the employer to re-introduce a testing alternative and to refer the policy to the Joint Health and Safety Committee for review and recommendations. The policy was also unreasonable to the extent that unvaccinated employees could be disciplined, discharged, or placed on unpaid leaves. The Arbitrator was clear that if the pandemic situation evolves, if real operational problems occur, or if the combined vaccination and testing regime does not address safety concerns, additional measures could be taken by the employer, including placing unvaccinated employees on administrative leave.
Ontario Power Generation v. Power Workers' Union, dated November 12, 2021
This case dealt with another mixed vaccination and testing regime in Ontario. Under the policy in question, unvaccinated employees self-administered rapid antigen tests twice per week outside of working hours. Test kits were provided to employees who agreed to a pay deduction of $25 per week or could alternatively be procured at the employee’s own expense. The policy imposed an unpaid leave of absence for unvaccinated employees who refused to participate in the testing program, and termination for cause for those who maintained their refusal after six weeks of leave.
Arbitrator John C. Murray decided that regular testing for unvaccinated employees was reasonable as a result of the employer’s obligations to provide a safe workplace. He considered the benefits of self-administered tests and concluded that the interests of the parties would be balanced by requiring the employer to pay for all COVID-19 tests with these continuing to occur during unvaccinated employees’ own, unpaid time.
Arbitrator Murray expressed that non-compliant employees would be “refusing to take the necessary and reasonable step of taking a minimally intrusive test that would demonstrate that they are fit to work and do not present an unnecessary risk to their co-workers during a global pandemic that has cost 29,000 lives in this country and at least 5 million world-wide.” Such employees can be “sent home […] pending completion of the discipline process.” The Arbitrator explained that, after the 6-week period, these employees have essentially decided to end their career with the employer and warned that they are “very likely to find the termination of employment upheld at arbitration.”
Union des employés et employées de service, section locale 800 c. Services ménagers Roy ltée., 2021 CanLII 114756 (QC SAT), dated November 15, 2021
In this case out of Quebec, the union challenged several cleaning companies’ collection of employee vaccination information. The cleaning and maintenance work was performed at client locations, some of which had implemented vaccination rules for their contractors. To comply with these third-party requirements, the cleaning companies had to demand the disclosure of vaccination status from employees assigned to those clients.
Arbitrator Denis Nadeau decided the case under a human rights framework unique to Quebec’s Charter of Human Rights and Freedoms. The Arbitrator agreed that the cleaning companies’ disclosure requirement violated employee privacy rights. Since the requirement assumed that employees are fully vaccinated, incidental infringements on employees’ freedom and physical integrity could also be at issue.
Arbitrator Nadeau went on to consider the circumstances around the pandemic, scientific knowledge, and employers’ legal obligations. He reviewed evidence demonstrating that third-party vaccination requirements were part of the collective effort against COVID-19 and aimed to protect workers, clients, suppliers, and visitors. The Arbitrator accepted that unvaccinated employees are more likely to transmit the virus to others and to experience serious consequences from infection. Arbitrator Nadeau considered the Quebec Charter rights of every employee to fair and reasonable conditions of employment that have proper regard for their health, safety, and physical well-being. As well, he examined employers’ obligations under Quebec’s occupational health and safety laws, and employees’ obligation not to endanger the health and safety of persons at their workplace.
While employee privacy rights were infringed by the cleaning companies, Arbitrator Nadeau stated that no right is absolute. He ruled that employers’ occupational health and safety obligations justified the violations of employee privacy rights. These infringements were inconsequential compared to the major and known inconvenience caused by the presence of unvaccinated employees in the workplace, given the current scientific knowledge. Accordingly, he decided that the rights and freedoms of individual employees could be limited, having proper regard for public order and the general well-being of the citizens of Quebec. In arriving at this conclusion, the Arbitrator took into consideration that unvaccinated employees, and those who failed to disclose their vaccination information, could be administratively reassigned to clients without vaccination requirements.
Conclusion
While these decisions provide a glimpse into how arbitrators are addressing these policies at a particular time in a particular workplace, the landscape is ever-changing and the issues engaged are complex and highly sensitive. At AQR Law, we regularly advise clients on employer policies, including in relation to COVID-19 related ones. Please contact us if we can assist at your workplace.
This article is provided for informational purposes only and is not intended as legal advice.