ABOUT OFFICES CAREERS STUDENTS ALUMNI PAYMENTS Bennett Jones People Expertise Resources BLOG Challenging Mandatory Vaccination Policies in Ontario: Arbitrators Take a First Look and Reach Differing Conclusions November 22, 2021 Written by Madison Stemmler, David Cassin and Sara Parchello There are now three recent Ontario arbitration decisions that address whether an employer may require its unionized employees to be vaccinated. While directly relevant to unionized employers, given the lack of case law considering the issue, these decisions may have further-reaching impacts on all employers in Ontario. Mandatory vaccination policies were upheld in Arbitrator Fred von Veh's November 9, 2021, decision titled United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd. and Arbitrator John Murray's November 12, 2021, decision titled Ontario Power Generation v The Power Workers Union. Conversely, Arbitrator John Stout found in his November 11, 2021, decision Electrical Safety Authority v Power Workers Union that the employer’s mandatory vaccination policy was unreasonable and unenforceable. While the decisions all deal directly with the enforceability of vaccination policies in the workplace, they are all highly fact and context-specific. United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd. Background Paragon Protection Ltd. employs approximately 4400 security guards, operating at more than 450 third-party sites across Ontario. A majority of these worksites have mandatory vaccination policies. The Collective Agreement between the employer and union contains an article stating that if a security guard is stationed at a third-party site with a mandatory vaccination requirement the guard must agree to be vaccinated or reassigned to another site. Notably, the article in question was part of the Collective Agreement prior to the onset of the COVID-19 pandemic. On September 3, 2021, Paragon unilaterally implemented a mandatory vaccination policy that was designed to ensure that all of its employees were fully vaccinated against COVID-19 by October 31, 2021, whether or not the third-party worksites required mandatory COVID vaccinations. The Union grieved the introduction of the vaccination policy, arguing that it was not reasonable. Decision Arbitrator von Veh held that Paragon's policy was reasonable, enforceable and compliant with the Occupational Health and Safety Act (Ontario) (OHSA) and the Human Rights Code (Ontario). He found that Paragon had an obligation under the OHSA to “take every precaution reasonable in the circumstances for the protection of its workers” and that the “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace the available scientific considerations.” The arbitrator also found the vaccination policy aligned with the vaccination article that was already present in the Collective Agreement, as well as the vaccination requirements of many third-party worksites to which the security guards were assigned. As such, Arbitrator von Veh found that Paragon's unilateral introduction of the vaccination policy was a permissible exercise of its management rights pursuant to the Collective Agreement. Ontario Power Generation v The Power Workers Union Background Ontario Power Generation has gyms on-site that can be used by employees. Certain employees are subject to a "Mid-Term Agreement" that entitles them to one hour of exercise per shift and allows them to use the onsite gyms during working hours as they are subject to physical testing requirements. The gyms were closed at the start of the pandemic for all employees. In September of 2021, Ontario Power re-opened the gyms with the requirement that any unvaccinated employee who wished to use the gyms had to provide proof of a negative COVID-19 test within 48 hours of usage. In October of 2021, this policy was amended to prohibit unvaccinated employees from using the gyms. This case is distinguishable from the other two discussed in this blog in that no mandatory vaccination policy was put in place as a requirement of employment. Instead mandatory vaccination was only required for the use of the gym facilities. Decision Arbitrator Murray upheld Ontario Power's mandatory vaccination requirement for gym access. He stated that it is a matter of public record that gyms are high risk areas for transmission of COVID-19 due to (i) high touch surfaces, (ii) increased potential for close contact and (iii) the greater range of respiratory droplets due to heavy breathing. Furthermore, the Ontario government has currently mandated that public gyms are required to have their patrons vaccinated in order to be granted gym access. He stated that the OHSA requirement to take every precaution reasonable to protect the worker trumped the Mid-Term Agreement that allows for gym access. Although the gyms are not public, the same logic that has informed the Ontario government in relation to public gyms should be applied to Ontario Power's private gyms. Requiring employees who use to the gyms to be vaccinated is therefore reasonable. Moreover, employees covered by the Mid-Term Agreement would still be entitled to their one hour of exercise. That exercise would simply have to take place at a location other than the gyms, including at home or outdoors. Electrical Safety Authority v Power Workers Union Background Prior to the introduction of its mandatory vaccination policy on October 5, 2021, the Electrical Safety Authority had a voluntary vaccination disclosure policy, which included a requirement that employees who were unvaccinated (or refused to disclose their vaccination status) submit to regular COVID-19 testing. Field staff were to be tested at least twice a week and office employees had to be tested no more than 48 hours before appearing for an in-person meeting or attending at an ESA office. Decision Contrary to the above decisions, Arbitrator Stout found that the Safety Authority's mandatory vaccination policy was unreasonable and could not be justified in the circumstances. Of note, many of the Safety Authority's employees still work from home (as is their right under the Collective Agreement) and therefore caused no significant risk of transmission to fellow workers, even if unvaccinated. In distinguishing his decision from Paragon, Arbitrator Stout noted the importance of context when assessing the reasonableness of a workplace rule or policy. Where the risk to health and safety is great, an employer may encroach upon individual employee rights with a carefully tailored rule. In high-risk workplace settings with vulnerable populations, a mandatory vaccination policy may not only be reasonable but may also be necessary. Ultimately, the Safety Authority was unable to demonstrate why it required a mandatory vaccination policy as opposed to the less intrusive voluntary disclosure and testing policy that had previously been in place. Arbitrator Stout found that (i) there had been no outbreaks of COVID-19 in the workplace; (ii) the Safety Authority did not face any difficulty in protecting the workplace using the previous policy; and (iii) there was no evidence that the previous policy led to a substantial interference with its business. Despite his findings, Arbitrator Stout acknowledged that it may be reasonable to have a policy requiring unvaccinated employees to be placed on an unpaid administrative leave if upon physically returning employees to the workplace, health and safety problems arise. Arbitrator Stout also distinguished the case from Paragon on the basis that in Paragon, the Collective Agreement already contained a vaccination term, and the employer’s business interests would have been significantly negatively affected because of the mandatory vaccination policies in effect at the third-party worksites. Decisions relating to the reasonableness of mandatory vaccination policies are highly fact-specific and contextualized. There is no "one size fits all" solution for all workplaces. Takeaways The Paragon, Ontario Power and Power Workers Union decisions further demonstrate the need for employers to consider their vaccination policies in the context of their workplace (and the specific dangers it presents) along with any applicable collective agreement, legislation and governmental guidance. Employers will need to demonstrate why their policy is necessary in the workplace and why a less onerous policy will not suffice. To do so, employers may seek to rely on the following factors: a history of COVID-19 outbreaks in the workplace; regular employee contact with vulnerable populations such as the elderly, the immunocompromised or children; increased danger of COVID-19 transmission due to the type of activity that takes place in the workplace; and/or evidence that the employer’s business is being substantially interfered with because its employees are not fully vaccinated. As these are the first three decisions dealing with workplace-mandated vaccinations in Ontario, we expect further consideration of the issue and application of the principles from these decisions in the future. We will continue to monitor these issues as they unfold. If you have any questions about the effect of these decisions and the enforceability of your vaccination policy, please contact the Bennett Jones Employment Services group to discuss. PDF Download Authors Madison Stemmler, Associate David Cassin, Associate Sara G. 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