1. Electrical Safety Authority v. Power Workers’ Union, Ontario, November 11, 2021, John Stout, arbitrator
On November 11, 2021, an Ontario arbitrator ruled on the validity of a mandatory COVID-19 vaccination policy required by an employer (Electrical Safety Authority) for all employees.
The facts
The employer, Electrical Safety Authority, is an organization mandated by the Ontario government to monitor electricity safety compliance for the public.
In September 2021, the employer created a policy calling for regular screening of its employees not adequately vaccinated or whose vaccination status had yet to be determined by the employer.
Several weeks later, with a view to having employees return to the workplace in January 2022, the employer changed its policy to now include a mandatory vaccination requirement, providing that the failure to be sufficiently vaccinated against COVID-19 could be punished by disciplinary measures, including dismissal.
The policy affected all employees, including both office workers and those working externally with a range of clients, such as inspectors.
In this case, the collective agreement contained no reference to vaccination and the employer had never required vaccination of an employee as a precondition of employment. Furthermore, no Ontario legislation requires that employees have to be adequately vaccinated.
A large majority of employees had been vaccinated (88,4%) and voluntarily disclosed their vaccination status to the employer. Only 14 employees out of 415 failed to disclose their vaccination status.
As of March 2020, solely 7 employees had been infected by COVID-19. Only 2 of those cases were potentially work-related, and this was prior to the vaccine becoming available.
The decision
Firstly, the arbitrator laid down the general principles applicable where a rule of an employer affects individual rights of employees. The policy or rule has to fulfil the following conditions:
- The rule shall not be inconsistent with or violate the collective agreement
- The rule shall not be unreasonable
- The rule shall be clear and unequivocal
- Employees shall be informed in advance of the date when the rule enters into effect.
- Employees governed by the new policy have to be informed in advance of possible consequences in the event of failure to comply with the policy or the rule
- The rule to be implemented by the employer shall be applied in a consistent, fair manner from the moment of its entry into force and effect.
The arbitrator indicated that these principles derived from the case law are applied with a view to balancing benefits and harm experienced by the parties in order to assess the reasonable or unreasonable nature of the employer policy. Furthermore, the context of each case is extremely important within the framework of this analysis.
The arbitrator’s view was that, in certain situations where the risk for health and safety is high, the employer has a broader latitude to impair the individual rights of employees, such as for example in the case of first responders in emergency health services.
Furthermore, according to the Tribunal, the employer has a duty to take all reasonable precautions under the circumstances to protect the employee pursuant to the Occupational Health and Safety Act (the counterpart of Section 51 of the Act respecting Occupational Health and Safety in Québec).
In this case, there had been no specific change in the situation of the employer since the implementation of its initial policy in September, 2021, save the objective of the employer to bring back his employees to the workplace in January 2022. Although legitimate as an aim, it was insufficient to justify, in the arbitrator’s view, mandatory vaccination for all employees.
The arbitrator remarked that screening is an alternative and a reasonable tool of protection, although less reliable than vaccination. In this decision, the employer did not succeed in demonstrating to the Tribunal any particular difficulty in protecting his employees by using a combination of vaccination and the screening system. Nor was there any evidence of special risks or dangers for the health and safety of employees or substantial evidence showing interruption of its ability to carry on business.
He thus came to the conclusion that the policy of mandatory vaccination of the employer was in large part unreasonable.
In fact, the arbitrator ruled that the imposition of disciplinary measures, including dismissal of an employee due to a failure to be completely vaccinated, when it was not initially a condition of hiring and alternative measures were possible, is unfair and unreasonable. Although the employer enjoys management rights, in the absence of legislation or a specific clause in the collective agreement, an employer cannot terminate employment or even discipline an employee on the ground that he or she has not been adequately vaccinated, unless the case law principles discussed above are fulfilled and the measure is deemed to be a reasonable exercise of employer management rights. Within the context of this decision, the arbitrator also determined that it was unreasonable to order the administrative dismissal of employees without remuneration on the ground that they were not completely vaccinated.
However, the arbitrator added that it is reasonable to ask employees to confirm their vaccine status, provided the confidential nature of their medical information is preserved and this information is only shared after receipt of the prior consent of the employee. In this regard, the employee can allow general consent to the disclosure of his or her vaccine status to third parties. He or she can also grant specific consent on a case-by-case basis.
However, within the current COVID-19 environment, the arbitrator was also careful to point out that employees have to be aware that their vaccine status may be required, and that it will not always be possible to comprehensively and at all times keep such information strictly confidential.
2. UFCW, Canada Local 333 and Paragon Protection Ltd (Vaccination Policy Grievance), November 9, F.R Von Veh, Arbitrator
At the other end of the spectrum, in UFCW, Canada Local 333 and Paragon Protection Ltd (Vaccination Policy Grievance), the arbitrator ruled that the context of the workplace justified a policy of mandatory vaccination of the employer against COVID-19.
The circumstances of this decision are very different from those summarized above, since this matter involved a business where the employees — security guards — accomplished all their work tasks outside the employer workplace at locations of third-party clients. The policy thus was implemented with a view to complying with requirements of clients related to vaccinations. Virtually all of the clients had a mandatory vaccination policy with respect to their employees and their subcontractors.
Furthermore, a clause in the collective agreement already provided, prior to the pandemic, that employees had to receive the specific vaccination required in the workplace which was assigned to each of them. This distinction becomes significant when compared with the Electrical Safety Security case.
In this same decision, the arbitrator ruled that the mandatory vaccination didn’t violate the Ontario Human Rights Code with respect to discrimination, and that the policy was designed to comply with applicable occupational health and safety legislation, notably concerning the duty of the employer to protect the health and safety of its employees.
The arbitrator found that the mandatory vaccination policy of the employer against COVID-19, including its exemption mechanisms, relieving employees of strict compliance in cases involving health issues or religious beliefs, were justified, both within the current context and under the governance of the clause already existing in the collective agreement related to vaccinations.
