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Nov 23, 2021

Emerging Case Law Regarding the Enforcement of Vaccination Policies

By Alex Kagan and Jessica Schissler

As the COVID-19 vaccine became readily available in Canada, many employers implemented vaccination policies in an effort to return employees to the workplace safely. Not surprisingly, such policies have varied, particularly as it relates to enforcement. While some merely encouraged vaccination, others made it mandatory under penalty of unpaid layoff or termination of employment. Some offered an optional testing alternative, while others have allowed alternatives to vaccination strictly on the grounds of approved human rights objections.

In this article, we summarize several recent decisions which provide guidance regarding how courts and arbitrators will assess the complex issue of workplace vaccination policies. There will certainly be more decisions to come.

Employer Ordered to Assume Costs of Rapid Antigen Testing Program

In a November 8, 2021 arbitration decision between Ontario Power Generation (“OPG”) and the Power Workers Union (“PWU”), Arbitrator Murray considered several issues related to the employer’s vaccination policy. As part of their vaccination policy, OPG sought to implement a testing program. The employees subject to the testing program would be required to self-administer the test in accordance with very specific guidelines as established by OPG. However, unvaccinated employees would be required to pay OPG $25 per week for the tests. Such employees could either agree to have this amount deducted from their regular pay or procure their own testing kits (two tests per week) through local community testing centres.

The PWU argued that it was not reasonable for the costs of the testing (expense and time) to be placed on the employee. Arbitrator Murray agreed, in part, and ordered that the cost of rapid antigen tests for unvaccinated employees be borne by the employer. However, employees are required to self-administer the tests on their own time, prior to reporting to work, and are not entitled to be compensated for time spent in administration or reporting the result. Accordingly, PWU’s grievance was allowed in part on this specific issue.

In the same decision, Arbitrator Murray held that it was reasonable for the employer to place unvaccinated employees who refuse to participate in the testing program on unpaid leaves, pending completion of the disciplinary process. The employer had given employees six weeks to consider whether they are willing to comply with the testing protocols. The employer also made it clear to employees that termination of employment would typically occur at the end of this period. On this point, Arbitrator Murray stated:

It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, the employees who refuse testing will likely will have made a decision to end their career with this Company [sic].

Mandatory Vaccination Policy Upheld

In a November 9, 2021 arbitration award, Arbitrator Von Veh upheld an employer’s mandatory vaccination policy on the basis that it appropriately struck a balance between the rights of employees who did not wish to get vaccinated and the safety of workplace staff, the employer’s clients and members of the public. The employer, Paragon Security, is a security contractor who provides security guards to their clients’ venues and locations.

Interestingly, the collective agreement included a vaccination clause that was agreed to long before the pandemic. The clause stated that if an employee was assigned to a site where specific vaccination/inoculation was required by law, or where the conditions of contractors having access to the site stipulated a specific vaccination, the employee was required to be vaccinated. Arbitrator Von Veh held that the mandatory element of this clause was correctly incorporated into the employer’s vaccination policy.

Mandatory Vaccination Policy Deemed Unreasonable  

In a November 11, 2021 arbitration decision, Arbitrator Stout held that the Electrical Safety Authority’s mandatory vaccination policy was unreasonable to the extent that employees could be disciplined, discharged or placed on an unpaid leave for failing to get fully vaccinated.

The Electrical Safety Authority is a not-for-profit corporation responsible for public electrical safety in Ontario. It arranges electrical inspections for customers when an electrician or contractor is doing work or changes an electrical service. Much of the company’s work throughout the pandemic was undertaken remotely and many employees maintain the right to work remotely under the collective agreement. However, Arbitrator Stout also noted that some employees, like inspectors, require access to third-party sites and may need to travel.

Prior to October 5, 2021, the company had a voluntary vaccination disclosure and testing policy, which permitted employees who did not voluntarily disclose their vaccination status to be tested on a regular basis. The union did not object to testing, in fact, they were publicly supportive of it. The company removed the testing alternative as of October 5, 2021, when the vaccination policy became mandatory. Arbitrator Stout noted that there appeared to be no significant change in the company’s COVID-19 situation since the implementation of the testing program other than the company’s fear that mandatory vaccination rules and policies of third-parties may interfere with the company’s business and a desire to bring employees back into the workplace in January 2022.

Arbitrator Stout held that the company was unable to point to a real and demonstrated risk or business need that called for the policy’s enforcement provisions. Among other things, they had never had an outbreak in their workplace, the vast majority of employees were voluntarily vaccinated, and many employees continued to work remotely. In addition, he was not satisfied that the company had proven a significant problem exists with regard to third-party access and travel, which would interfere with their operations. He was of the view that many of these sites also provide a testing alternative and that the issue of an unvaccinated employee attending at one of these sites could likely be addressed by a policy that includes a testing option. Put simply, there was no evidence that work had been significantly impeded or lost as a result of some employees (a significant minority) not being vaccinated.

Arbitrator Stout’s directions, therefore, required the employer to amend their vaccination policy to make it clear that employees shall not be disciplined or discharged for failing to get vaccinated and providing a testing option  to unvaccinated employees.

Arbitrator Stout clarified that his ruling was not in conflict with that of Arbitrator Von Veh’s (discussed above). The facts of the two cases are distinguishable due to the specific vaccination clause in the collective agreement and the different context of a company whose employees work, on a majority basis, at third-party sites.

Court Refuses to Grant Interim Injunction to Plaintiffs Challenging Vaccination Policy

In Blake v. University Health Network, 2021 ONSC 7139, several  unionized and non-unionized employees challenged the validity of their employer’s mandatory vaccination policy. On October 22, 2021, Justice Dunphy issued an interim injunction in the proceeding in order to preserve the status quo and prevent the dismissal of the employees involved in the lawsuit brought against the University Health Network (“UHN”). However, the injunction was issued while a jurisdictional issue was addressed.

On October 29, 2021, Justice Dunphy dissolved the interim injunction. To be clear, the decision did not address the question of the merits or legality of the vaccination policy adopted by UHN. However, it was determined that the essential character of the dispute fell squarely within the ambit of the collective agreement. The unionized employees were required to grieve the policy through the dispute resolution scheme as prescribed in the collective agreement.

Conclusion

We expect more arbitral and judicial decisions to provide further direction regarding the implementation and enforcement of vaccination policies. Currently, the number of decisions are limited and reflect unique workplaces and collective agreements. However, they give us a sense of where the law is moving towards and will provide guidance to arbitrators and judges as well as counsel and employers. We will closely monitor new developments in this area as they emerge.

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