This month has seen arbitral treatment of two mandatory vaccination policies in the context of unionized workplaces. In a grievance brought by the United Food and Commercial Workers Union, Canada, Local 333 against employer Paragon Protection Ltd., the arbitrator found that the employer’s vaccination policy was reasonable. In a grievance brought by the Power Workers’ Union (the “PWU”) against employer Electrical Safety Authority, the arbitrator found that it was not.
Paragon Protection’s Vaccination Policy
Paragon Protection Ltd. provides security services and employs 4,400 unionized security guards to hundreds of client sites across Ontario. Many of these client sites had vaccination requirements. Paragon gave its employees approximately two months notice that they would be requiring them to be fully vaccinated against COVID-19. Employees would report their vaccination status by way of a declaration. The policy allowed exemptions for human rights reasons on the basis of creed/religion and health.
Interestingly, in this case, the collective agreement had a provision addressing the possibility that client sites might have a vaccination requirement. The provision allowed that the employee must agree to receive a vaccination in such a case and that if they did not, they could be reassigned.
In finding the policy reasonable, the arbitrator took the following into consideration:
- The policy was compliant with the Ontario Human Rights Code and the Occupational Health and Safety Act.
- The policy struck a balance between respecting employee rights and the employer’s duty to provide a safe workplace. These employees interacted with other staff, clients and members of the public.
- The policy was reasonable in light of the employer’s responsibility under s.25(2)(h) of OHSA to “take every precaution reasonable in the circumstances for the protection of a worker.”
- The circumstances of COVID-19 vaccination could be distinguished from a decision regarding flu vaccination, as COVID-19 is more infectious and more deadly.
Electrical Safety Authority’s Vaccination Policy
The Electrical Safety Authority first instituted a voluntary vaccination policy with its 400+ person workforce. This policy allowed employees who did not wish to disclose their vaccination status to be instead subject to regular testing. They followed this voluntary policy with a mandatory policy, requiring employees to disclose their vaccination status and not offering the testing alternative to those who were unvaccinated. Consequences for being unvaccinated included discipline, discharge or an unpaid leave of absence.
The arbitrator, in this case, found the mandatory vaccination policy unreasonable, for the following reasons:
- The workers in question were not working with a vulnerable population. A factor that could lead to a mandatory vaccination policy to be a reasonable safety measure.
- There was no evidence that there was a COVID-19 problem within the workplace.
- Nothing about the COVID-19 situation had changed between the time of the voluntary policy and the mandatory policy. There was no evidence to show that the voluntary policy – offering the testing alternative – was inadequate for safety.
- The majority of the workers worked remotely and would continue to do so.
While the mandatory policy was found to be unreasonable, the voluntary policy, which offered a testing alternative, was found to be reasonable.
These decisions help shed light on what will be considered reasonable in the workplace vaccination debate. The rights of individual employees need to be balanced with the employer’s health and safety obligations. If you have questions about vaccinations in your workplace, get in touch for a consultation.