Unions challenge mandatory proof of vaccine policies
Arbitral decisions provide guidance to employers as they navigate untested legal waters
The COVID-19 pandemic continues with more than 5.1 million deaths worldwide and over 29,000 in Canada.
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 and public health crisis. Early responses of governments included lockdown regulations, physical distancing and masking mandates, as well as physical changes to workplaces.
As various COVID-19 vaccines were rapidly developed and given emergency approval by the leading drug evaluator, the FDA in the United States, Health Canada also reviewed and approved several vaccines for use in Canada. The highly effective, low-risk vaccines became the clear, obvious and compelling way through and out of the pandemic.
Starting before the recent federal election, Prime Minister Justin Trudeau 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.
Unions react to mandates
Union leadership generally deferred or failed to fully support employer vaccine mandates.
Therefore, in unionized workplaces, anti-vaxxers and irrational objections to the COVID-19 vaccine found shelter in their unions’ refusal to support managements’ unilateral vaccine mandates in the form of court actions and grievance. We are now seeing the first decisions of arbitrators.
COVID-19 vaccination policies become widespread in various sectors, and 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 OHS legislation in dealing with the pandemic, and the arguments that employers must prepare to deal with when mandatory vaccination policies are challenged.
Guiding legal decisions
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 Oct. 19, the Ontario Superior Court of Justice dissolved an interim injunction it had issued on Oct. 17.
Justice Sean Dunphy held that claims made with respect to the alleged “overreach” or “unreasonableness” of the exercise by an employer of the management rights clause in a 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.
The second decision was Paragon Protection Ltd., where arbitrator Frederick von Veh considered the United Food and Commercial Workers Union, Canada Local 333’s (UFCW) grievance regarding its mandatory vaccination policy.
On Sept. 3, Paragon introduced its policy which required that all employees be vaccinated by Oct. 31, 2021. Failure to do so would result in an employee’s removal from a jobsite, following which they would either be transferred to another jobsite or placed on an unpaid leave of absence.
Paragon’s policy was implemented in part due to the requirements of its clients. Paragon employs 4,400 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 the collective agreement, which expressly required employees to agree to vaccination where third-party clients required same.
Paragon also argued that the policy was reasonable in light of the client facing nature of the work its security guard employees perform. Paragon also argued the policy was necessary in order for it to meet its obligations under the Ontario Occupational Health and Safety Act (OHSA) to ensure a safe workplace.
The arbitrator held that 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 pursuant to the Human Rights 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 obligated the company 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 for other medical professionals to provide support for an employee’s request for an exemption.
In a surprising, contrary outcome, arbitrator John Stout heard the Power Workers’ Union’s (PWU) grievance alleging that the Electrical Safety Authority’s (ESA) mandatory vaccination policy was unreasonable.
The PWU also alleged that the policy violated the employees’ privacy rights and right to bodily integrity.
Prior to Oct. 5, the ESA’s policy allowed for employees to either disclose their vaccination status or to submit to regular COVID-19 testing. On Oct. 5, the ESA amended its policy to require mandatory vaccination. Testing would not be a possible alternative unless an employee had been granted accommodation pursuant to the Code.
The arbitrator accepted that the ESA had onerous safety obligations under the OHSA. However, he also 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. To justify mandatory vaccination under threat of discipline or discharge, the arbitrator found that an employer must demonstrate real risk or business need.
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 rather difficult to rationally justify.
The failure of provincial governments to clearly mandate vaccines as 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. They have no jurisdiction or experience with the vast number of quasi-criminal prosecutions against employers, including COVID-19 related prosecutions, in the courts.
Interestingly, the fact that the Ontario OHSA prevails over all other statutes, as an example, was not referenced in either of the above-mentioned 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.
Norm Keith is a partner with KPMG in Canada. He was assisted with this commentary, by Derek Klatt, an associate with KPMG.