In recent months, the most prevalent inquiry we have received from employers relates to the legality of COVID-19 Vaccine Policies in Ontario. Our response generally begins with "it depends" – before asking if the employer is in a unionized or non-unionized setting. This particular delineation has become increasingly important because the courts have yet to weigh in on the legality of such policies in non-unionized workplaces in Ontario. In fact, the only guidance in this regard which employers may rely on, comes from the unionized sphere, where we have seen a number of challenges to mandatory COVID-19 Vaccine Policies, with varying levels of success.
Our team at CCPartners has worked tirelessly to keep employers up-to-date on these decisions in a timely manner. However, these decisions are often highly contextual and complex, making it challenging for even the most diligent employer to remain apprised of the ongoing state of this issue. With this in mind, we have prepared this blog to provide a chronological rundown of all the COVID-19 Vaccine Policy decisions which have been rendered in Ontario to date. Be sure to revisit this blog in the coming months, as it will continue to be updated as further decisions continue to be released.
NOVEMBER 9, 2021: UFCW Canada Local 333 and Paragon Protection Ltd. (Read our full blog on this decision)
COVID-19 Vaccine Policy Details:
The employer implemented a COVID-19 Vaccine Policy requiring all employees to be fully vaccinated within approximately sixty (60) days. The Policy included an exemption: unvaccinated employees could be required to work at alternative sites, undergo additional testing, and/or be required to take an unpaid leave of absence.
Decision:
The Policy was upheld. The Arbitrator found that the Policy struck a balance between the rights of employees who do not wish to be vaccinated and creating/maintaining a safe workspace. This in turn allowed the employer to meet its obligations under section 25(2)(h) of the Occupational Health and Safety Act to "take every precaution reasonable in the circumstances for the protection of a worker."
NOVEMBER 11, 2021: Electrical Safety Authority and Power Workers' Union (Read our full blog on this decision)
COVID-19 Vaccine Policy Details:
The employer updated their COVID-19 Vaccine Policy to require all employees to disclose their vaccination status and/or provide confirmation of full vaccination within a less than sixty (60) days. This Policy provided no testing alternative for those that were unvaccinated or chose not to disclose their vaccination status, and those who refused to comply would be subject to further discipline, up to and including termination.
Decision:
The Policy was struck down and remitted back to the employer for review and amendment. The Arbitrator indicated that the new Policy was unnecessarily stringent, when considering the employer's unchanged circumstances at the time of updating the Policy. For instance, the majority of work being performed for the employer was effectively being done remotely, and that employees had a right to continue to work remotely pursuant to their collective agreement. In this regard, the employer had failed to demonstrate any new difficulties that had arose, hindering them from achieving their workplace health and safety obligations under their previous more flexible disclosure and testing policy. Lastly, the Arbitrator found that the discipline and discharge features of the new Policy were "premature" and "unjust" in the circumstances.
NOVEMBER 12, 2021: Ontario Power Generation v The Power Workers' Union (Read our full blog on this decision)
COVID-19 Vaccine Policy Details:
The employer implemented a COVID-19 Vaccine Policy requiring employees to either be vaccinated or submit to rapid antigen testing on a twice per week basis, Unvaccinated employees were required to pay for their rapid antigen tests and were not paid for the time expended to administer these tests. Employees who refused to comply would be subject to further discipline, including an initial temporary leave of absence followed by a potential termination for cause.
Decision:
The Policy was upheld. The Arbitrator found that imposing disciplinary penalties for unvaccinated employees who refused to participate in the rapid antigen testing program was justified in the context of the global pandemic, as it was a minimally invasive compromise. However, after taking note of the employer's large stature, the Arbitrator indicated that it was reasonable for them to cover the cost of such tests for unvaccinated employees (but not the time taken to administer them).
JANUARY 4, 2022: Bunge Hamilton Canada v UFCW, Local 175 (Read our full blog on this decision)
COVID-19 Vaccine Policy Details:
The employer implemented a COVID-19 Vaccine Policy requiring employees to provide proof of full vaccination within approximately seventy-six (76) days. The Policy indicated that employees who were not fully vaccinated and/or did not intend to provide proof of fully vaccinated status would not be allowed on site and would be put on an unpaid leave of absence, pending a final determination on their employment status (up to and including termination of employment).
Decision:
The Policy was upheld. The Arbitrator found that the public health and safety risks associated with being unvaccinated were held to justify the placement of individuals on unpaid leave of absence for failing to provide proof of vaccination. Further, the employer's close interaction with their sister job-site, which fell under a different jurisdiction, made the implementation of starkly different vaccination requirements to be impractical. Additionally, the Arbitrator was in favour of the Policy's language which did not stipulate that employees would be immediately suspended or terminated as a result of non-compliance. Rather, the Arbitrator noted that the employer's verbiage was open-ended, allowing for individual circumstances to be considered in the application of the Policy.
Takeaways:
We could likely write an entire article on the key takeaways which we have gleaned from these four decisions. However, above all else, it is important to remember that assessing the enforceability of a COVID-19 Vaccine Policy is highly fact-specific and contextual exercise. Policies are more likely to be upheld where there are reasonable alternatives to vaccination offered to employees who do not wish to comply, such as regular rapid antigen testing or remote work. Whereas more stringent policies are only likely to be upheld in workplaces where reasonable alternatives simply do not exist as a result of extenuating circumstances or due to the nature of work. The challenges for employers continue, however, as antigen tests are currently unavailable and various levels of governments appear to be backtracking on previously rigid governmental requirement to be fully vaccinated.
The best way to ensure that your COVID-19 Vaccine Policy is compliant, is to contact one of our lawyers today to obtain personalized guidance and support. We are available to answer any questions you may have and conduct a review of your Policy to provide recommendations regarding whether you need to consider updating or amending your Policy in the circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
