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Mandatory COVID-19 Vaccination Policy Cases: 3 Employer Insights

Published:

December 14, 2021

Author(s):

• Alex Warshick
• Chris Pelkey

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This publication has been updated as at January 26, 2022.

Since COVID-19 vaccinations rolled out, employers have been grappling with how to handle workplace COVID testing and vaccination, with little guidance from courts or arbitrators.  Increasingly, employers are turning to mandatory vaccination policies in an attempt to protect employee health and safety in the face of the fourth wave of COVID-19 and the arrival of new variants, including Delta and now Omicron. Vax or test policies, requiring that employees show proof of vaccination or undergo regular COVID-19 testing are being or have been replaced by mandatory vaccination policies requiring that employees show proof of vaccination or be placed on unpaid leaves and, in some cases, face terminations of employment. Decisions on other COVID-19 related litigation claims began to make their way through the judicial last year. And now decisions about employee and union challenges to the enforceability of mandatory vaccination policies are emerging. And these decisions suggest that, at least in the unionized context, mandatory COVID-19 vaccination policies are withstanding those challenges.

3 Employer Insights

Recent court and arbitration decisions offer employers insight into how unions and employees are challenging mandatory COVID-19 policies, and which policies decisions-makers will – and which they won’t – enforce. And while most are in a unionized workplace, these decisions offer employers in both unionized and non-unionized settings important insights:

Injunctions are Unlikely. Several decisions dismissing union and employee applications for a cease and desist, stay, or injunction order suspending the employer’s mandatory COVID-19 vaccination policy pending a final decision on whether its enforceable demonstrate that it’s likely that courts and arbitrators will deal with most challenges to vaccination policies on their merits, and unlikely that they will grant unions or employees injunctive relief in the meantime. This gives employers confidence to continue to apply COVID-19 vaccination policies unless and until a court or arbitrator strikes the policy down as unenforceable.

Consistency with Collective Agreements & Legislation. Several decisions in which the arbitrator found the employer’s COVID-19 mandatory vaccination policy reasonable and enforceable demonstrate the importance of accounting for Collective Agreements, legislation, and other government direction when drafting COVID-19 vaccination policies. It’s key that employers ensure their mandatory COVID-19 vaccination policies comply with any applicable Collective Agreement provisions relating to health and safety or workplace vaccination and with any applicable legislation. In some cases, an increased risk to the health and safety of employees or the public might be sufficiently great to override certain agreements between the employer and the union, particularly in the context of the surging Omicron wave. However, it’s less likely this will apply to core Collective Agreement provisions, and could be contingent on the availability to employees of an adequate alternative.

Context is Crucial – and Changing. The overwhelming majority of arbitration decisions to date have found mandatory COVID vaccination policies reasonable and enforceable.  The sole decision so far that did not was heard and decided pre-Omicron (November 2021), and involved employees who already primarily worked from home. This decision demonstrates that just because a policy is reasonable in one workplace doesn’t mean it’s reasonable in another. But the context has changed since that decision, with Omicron and a massive wave of new COVID cases, and more widely-adopted vaccination mandates. It remains crucial that employers carefully consider the unique aspects of their workplace to determine whether mandatory vaccination is necessary to ensure their employees’ health and safety, or if something less onerous will be enough – bearing in mind the changing broader context. Consider whether:

• Employees interact with vulnerable populations, including immunocompromised or elderly people, or have significant contact with the general public.
• There’s a history of COVID-19 outbreaks in the workplace – a consideration that the Omicron wave might have changed significantly.
• There are alternatives available that would reduce the risk of COVID-19 transmission, such as allowing employees to work from home.
• The type of work or nature of the workplace increases the risk of COVID-19 transmission, such as employees working in frequent close contact or high touch surfaces.
• The employer’s business would be substantially interfered with if its employees are not vaccinated; for example, whether employees are required to frequently access third party sites that require vaccination, as is increasingly the case.

As with other COVID-related litigation, as more arbitrators and courts release more decisions, and more cases reach higher courts (and they will), greater certainty about the enforceability of COVID-19 mandatory vaccination policies will evolve. In the meantime, here’s a look at a handful of the emerging decisions about COVID-19 mandatory vaccination policies.

Cease & Desist, Stay & Injunction Decisions

A tactic unions and employees have used in mounting challenges to the enforceability of employers’ mandatory COVID-19 vaccination policies is to apply to arbitrators or courts for cease and desist, stay, or injunction orders that would suspend the operation of the policy until the final decision on its enforceability is made. To date, however, those efforts have failed.

Canada Post Corporation v. Canadian Union of Postal Workers. The employer’s initial policy gave employees the choice of being vaccinated or undergoing regular COVID-19 testing. The employer replaced this policy with a mandatory vaccination policy requiring that all employees be fully vaccinated or be placed on an unpaid leave of absence. The union grieved the mandatory vaccination policy on the basis it was an unreasonable exercise of management authority. Before the grievance was heard, the union applied for a cease and desist order to prevent the employer from implementing its mandatory vaccination policy until the grievance was finally decided – and lost. On November 30, 2021, the Arbitrator denied the union’s application:

• No Irreparable Harm. The Arbitrator distinguished actual irreparable harm from purely economic harm. While employees affected by the employer’s decision would face financial consequences as a result of their unpaid leave, they weren’t being coerced into receiving the vaccination. Each employee was given a choice and would be required to deal with the consequences of that choice. If the employer’s vaccination policy were eventually struck down, the employees could be reasonably compensated with a monetary award.

• Balance of Convenience. The Arbitrator decided the balance of convenience clearly favoured the employer. Specifically, the Arbitrator recognized the serious risk of COVID-19 to the health and safety of the employer’s workers and to the public, finding a cease and desist order would add to this risk.

• Expert Evidence. In assessing the balance of convenience, the Arbitrator accepted expert evidence that: vaccination is safe and effective; it’s the most effective strategy at reducing transmission of COVID-19 in the workplace; rapid antigen testing isn’t as effective as vaccination at reducing transmission of COVID-19; early infection might not be detected with rapid antigen testing; and the sensitivity of rapid antigen testing might be compromised if performed by an untrained employee.

Toronto Transit Union, Local 113 et al. v. Toronto Transit Commission. The employer implemented a policy requiring its employees to be fully vaccinated against COVID-19 unless approved for an exemption under the Ontario Human Rights Code. Non-exempt employees failing to prove they had been vaccinated by November 21, 2021 were to be placed on unpaid leave and, if they still failed to prove vaccination by December 31, 2021, their employment would be terminated. The union grieved the mandatory vaccination policies and applied to the Ontario Superior Court of Justice for an interim injunction. On November 20, 2021, the Court refused to grant the injunction for reasons similar to, and as relied upon by, the arbitrator in the Canada Post decision. Specifically:

• No Irreparable Harm. The Court found that the employer’s vaccination mandate didn’t force employees to get vaccinated – only to choose between two alternative they might not like: vaccination or loss of income. The Court found this was an individual’s choice to make, and didn’t amount to irreparable harm to all union members (the majority of whom had complied with the mandate). The Court also found that any stigma arising from not vaccinating wasn’t a result of failure to abide by the policy, but a societal consequence of choosing not to vaccinate, and wasn’t irreparable harm. The Court opined that choices have consequences.

• Balance of Convenience. The Court also noted the increased risk to the public given the nature of public transit if the injunction were to be granted.

Lachance c. Procureur général du Québec, Lavergne-Poitras v. Canada (Attorney General) & Wojdan v. Canada (Attorney General). In each of these cases, employees are challenging an employer’s mandatory vaccination policy by way of a lawsuit or judicial review alleging the policy breaches the employees’ Charter rights, an avenue open only where the policy is that of a government employer. In Lachance and Wojdan, employees are challenging their own employer’s policy (the Québec provincial government and the federal government, respectively); in Lavergne-Poitras, the employee of a federal government supplier is challenging the federal government’s policy requiring all employees of its suppliers to be vaccinated to be on its sites. In each case, the employee(s) applied to the relevant court for an injunction suspending the employer’s mandatory vaccination policy – and in each (most recently on December 2, 2021, in the Wojdan case) lost.

Other recent decisions have denied an interim order suspending the operation of employers’ mandatory COVID vaccination policy, though on a slightly different basis, including:

• Two B.C. Labour Relations Board decisions: Insurance Corporation of British Columbia v. Canadian Office and Professional Employees’ Union, Local 378 (November 2021) and District of West Vancouver and West Vancouver Professional Fire Fighters Union, Local 1525, Re , 2021 BCLRB 198 (December 2021). In each, the unions applied to the B.C. Labour Relations Board seeking remedies on the basis the employers failed to provide the required notice of a new policy affecting a significant number of employees and failed to consult with the unions, as required under the B.C. Labour Relations Code. In the interim, the unions sought orders to suspend the policies – both requests were denied.

• In Richmond (City) v. International Association of Professional Firefighters, Local 1286 (January 2022), , the Arbitrator didn’t determine the issue of irreparable harm, and actually accepted that some of the harm the three grieving unions claimed on behalf of their members couldn’t be remedied. Instead, the Arbitrator decided the request for a stay order on the balance of convenience, which the Arbitrator found favoured the employer, finding the health and safety risk to employees and the public outweighed the privacy and bodily integrity rights of union members refusing to comply. The unions also sought, if the stay order wasn’t granted, a partial exemption from the policy for certain groups of employees with minimal contact with other employees or the public (including those who worked primarily from home); the Arbitrator denied this too.

Enforceability of Mandatory COVID-19 Vaccination Policies

In most of these cases, the union launched a policy grievance (a grievance on behalf of all of its bargaining unit members) challenging the employer’s mandatory COVID-19 vaccination policy on its face as amounting to an unreasonable exercise of the employer’s management rights. One grievance, however, challenged the employer’s enforcement of the policy as breaching their collective agreement rights in other ways. Non-unionized employees don’t have these routes available to them, and must effectively challenge a policy in the context of a wrongful dismissal claim. These decisions provide employers in both unionized and non-unionized workplaces with insight into how a decision-maker will assess COVID-19 vaccination policies – and why the outcomes can differ. Notably, however, in all but one case the arbitrator found the employer’s COVID-19 mandatory vaccination policy reasonable and enforceable.

TC, Local 847 and Maple Leaf Sports and Entertainment (Wideman). After the provincial government required that patrons at the employer’s venues (including the home arena of the Toronto Raptors and Maple Leafs) must be fully vaccinated, the employer implemented a policy requiring employees to be fully vaccinated and to disclose their vaccine status. It implemented strong safeguards to protect the confidentiality of the disclosed medical information. Non-compliant employees were subject to an indefinite unpaid leave of absence, and possibly dismissal. The employer put the grievor on an unpaid leave of absence for refusing to disclose his vaccine status. The union grieved, arguing the leave of absence violated the grievor’s seniority rights under the collective agreement, and disclosure violated his right to keep his medical information private. Noting “[i]t is clear that the weight of authority supports the imposition of vaccine mandates in the workplace to reduce the spread of Covid 19”, on January 12, 2022, the Arbitrator dismissed the grievance – and effectively found the employer’s mandatory vaccination policy reasonable:

• Back Door Challenge. The Arbitrator effectively rejected the union’s assertion that it wasn’t challenging the mandatory vaccination policy, only the disclosure obligation. The Arbitrator accepted the employer couldn’t enforce mandatory vaccination without disclosure and confirmed employers are entitled to seek disclosure of an employee’s vaccine status to the extent necessary to administer a vaccine policy, particularly where confidentiality protections are in place which, the Arbitrator found, was the case. The Arbitrator also rejected that the requirement for employees to be vaccinated (or to disclose their vaccination status) to perform bargaining unit work was a denial of seniority rights.

• Balance. The employer’s authority to impose the vaccination and disclosure mandate is based in its right to implement reasonable rules under the collective agreement and its Occupational Health & Safety Act duty to take any necessary measures to protect its workers. The Arbitrator decided the employer established that being vaccinated for COVID-19 is a necessary and reasonable qualification for the performance of work in the bargaining unit, given the existence of the pandemic.

• Context. The Arbitrator didn’t expressly rely on it, but noted employees were required to work in close proximity with other employees and, from time to time, players. The Arbitrator distinguished the earlier decision in Electrical Safety Authority and Power Workers Union, where the vast majority of work performed by affected employees was remote work. The employer also gave evidence there had been a COVID outbreak among employees at the premises.

Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175. The employer was a tenant of a federally-regulated entity. The landlord informed the employer it must comply with the landlord’s COVID-19 vaccination policy because the federal government required all the landlord’s employees, contractors and tenants to be vaccinated; unvaccinated people wouldn’t be allowed on-site. The employer’s original policy didn’t require employees to disclose their vaccination status and had no adverse consequences for failure to disclose or vaccinate. Based on the landlord’s requirements, the employer implemented a new policy requiring employees to prove their fully vaccinated status; failure would bar them from the site, and lead to an unpaid leave of absence and possibly dismissal. The union grieved the policy as an unreasonable exercise of management rights. On January 4, 2022, the Arbitrator found the employer’s mandatory COVID-19 vaccination policy reasonable:

• Balance. The Arbitrator agreed the lack of a testing alternative is relevant to deciding whether the actual policy is reasonable, but found the issue wasn’t the existence of reasonable alternatives to the non-compliance consequences, but the reasonableness of the actual policy. The Arbitrator concluded the policy was reasonable even without the testing alternative: testing instead of vaccination would breach the employer’s lease with the landlord, potentially rendering its business inoperable; and there was no evidence suggesting testing would sufficiently protect employees and others on site.

• Non-Compliance Consequences. It was reasonable and likely necessary for the employer to put employees on notice of non-compliance consequences. If the employer disciplines or dismisses an employee, that action can be grieved based on the circumstances at that time.

• Old Policy Irrelevant. That there were no COVID cases under the old policy didn’t make the new policy unreasonable. The landlord’s policy required disclosure and full vaccination status, and the employer couldn’t function properly unless it complied with that policy. The nature of COVID and its exposure and infection risks remain significant even if no employee became infected at work under the old policy.

UFCW, Canada, Local 333 and Paragon Protection Ltd. The employer served about 450 client sites in Ontario. The majority of these clients had their own vaccination policies requiring employees of contractors, such as the employer, to be vaccinated for site-entry. The employer implemented a mandatory COVID-19 vaccination policy requiring all employees be fully vaccinated with an approved COVID-19 vaccine by October 31, 2021. The policy included exemptions for employees unable to be vaccinated due to a medical condition or religious beliefs. Exemption requests would be assessed on a case-by-case basis; depending on the circumstances, exempted employees could be subject to one of the following alternatives to vaccination: moved to a different employer site at the prevailing rate at that site or position; required to undergo additional COVID-19 testing; or placed on an unpaid leave of absence. The policy provided no alternative measures for non-exempt employees. The union grieved the mandatory vaccination policy – and lost. On November 9, 2021, the Arbitrator dismissed the grievance and decided the policy is reasonable:

• Balance. The policy and its exemptions struck a reasonable balance between the rights of employees to decide whether to get the COVID-19 vaccine, and the employer’s obligation to provide a safe workplace for its employees, clients and members of the public. The Arbitrator also took notice of the vaccination requirements of the employer’s clients.

• Collective Agreement. The policy was consistent with the Collective Agreement, including a unique Article requiring employees receive various vaccinations “where specific vaccination and/or inoculation is required by law or where the conditions of contractors having access to the site stipulates specific vaccination and inoculation requirement”.

• Human Rights. With respect to the union’s argument the policy violated the Ontario Human Rights Code, the Arbitrator reiterated the Ontario Human Rights Commission’s statement on COVID-19 vaccinations. The statement recognizes the decision to receive the COVID-19 vaccine is voluntary, but only employees within a protected category (that is, medical or religious) fall under the scope of the Human Rights Code. Protection doesn’t extend to personal preferences or subjective perceptions of the vaccine.

• COVID is Unique. The Arbitrator distinguished previous decisions striking down influenza vaccination policies as an unreasonable invasion of employees’ right to autonomy. The Arbitrator outlined a number of distinct differences between influenza and COVID-19, including the pandemic nature of COVID-19 and its higher rate of infection and mortality.

Ontario Power Generation v. The Power Workers Union. The employer provides on-site gyms for employees. Certain employees whose job description requires physical fitness are subject to a “Mid-Term” Agreement giving them one hour during each shift for exercising and on-site access to the gym during work hours. The employer closed the gym at the start of the COVID-19 pandemic, but later reopened it under a policy that anyone accessing the gym must provide proof of full vaccination against COVID-19. The union grieved the vaccination requirement – and lost. On November 12, 2021, the Arbitrator decided the employer’s policy is reasonable, and enforceable:

• Balance. The Arbitrator also recognized the policy struck a reasonable balance between the employees’ rights under the Collective Agreement and the need to ensure workplace health and safety. Specifically, the policy wasn’t permanent, and unvaccinated employees were still entitled to one hour per shift for exercise as long as they exercised outside of the employer’s gym.
• COVID is Unique. While under normal circumstances, the policy would violate the Mid-Term Agreement, the COVID-19 pandemic is far from normal. Specifically, the Arbitrator noted the pandemic created a serious risk to the health and safety of gym attendees: gyms create an increased risk of transmission due to their high touch surfaces, increased close physical contact between attendees, and the increased range of respiratory droplets due to heavy breathing.  Therefore the policy was necessary to protect the health and safety of employees using the gym and usurped the Mid-Term Agreement.

• Collective Agreement. In a related grievance decided at the same time, the union challenged the employer’s test or vax policy, under which unvaccinated employees (or those refusing to disclose their status) who also refused to undergo weekly COVID-19 testing were placed on unpaid leave and would be subject to termination of employment if still refusing to comply after six weeks. The union argued the policy violated a collective agreement provision prohibiting unilateral suspension without pay pending the determination of appropriate discipline. The Arbitrator found, albeit limited to the particular context, it did not.

Electrical Safety Authority and Power Workers Union. Employees primarily worked remotely and only certain employees occasionally had to attend the employer’s office or third-party sites. The employer’s initial COVID-19 policy gave employees the option of being vaccinated or undergoing regular testing before attending the employer’s offices or third-party sites. In October 2021, the employer introduced a mandatory vaccination policy under which employees who were unvaccinated or refused to disclose their vaccination status were subject to discipline up to and including termination of employment. The union grieved the mandatory vaccination policy – and won. On November 11, 2021, and in contrast to Paragon and Ontario Power Generation cases, the Arbitrator decided the employer’s mandatory vaccination policy was unreasonable, and thus unenforceable:

• Balance. Mandatory vaccination policies aren’t reasonable in every workplace. The employee’s right to personal autonomy and privacy must always be balanced against the employer’s obligation to ensure the health and safety of its workers.

• Context Counts. In striking this balance, context is key. Where the risk to employee’s health and safety is great, or employees regularly interact with vulnerable members of the public, mandatory vaccination might be reasonable or even necessary. But where the risk of COVID transmission or infection is lower, as was the case here where employees primarily worked remotely, a less intrusive policy might suffice. And this employer’s workplace fell into the latter category, in which a mandatory vaccination policy is unreasonable. However, the Arbitrator did note that the circumstances – and the reasonableness of such a policy – could change in the future.
• The Original Policy Worked. In support of his decision, the Arbitrator noted: there had been no COVID-19 outbreaks at the workplace under the employer’s vaccinate or test policy; the employer didn’t show any evidence that the situation had changed and the vaccinate or test policy was no longer effective; and there was no evidence that the vaccinate or test policy interfered with the employer’s operation (most employees had the right to work from home and the vaccinate or test policy had not interfered with the employer’s relations with customers or other third parties). The Arbitrator distinguished the Paragon case, noting there, the employer is a security company whose employees performed their work at third party sites, and their collective agreement specifically required employees to receive vaccinations required at their assigned worksite.

Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss how we can help you with your mandatory COVID-19 vaccination policy.

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