Mandatory Vaccination Update

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The end of October and beginning of November has seen the Ontario Superior Court impose an interim injunction preventing a hospital from terminating employees under their mandatory vaccination policy, the lifting of that injunction a week later, one arbitrator upholding a mandatory vaccination policy as reasonable and another reaching the opposite conclusion.  Needless to say, we can anticipate a lot more activity on this front in the coming weeks and months.

In this article, we will summarize the court and arbitration proceedings to the date of writing (November 14, 2021).

·       Superior Court Ends Injunction Regarding UHN’s Mandatory Vaccination Policy

A.   Initial Interim Injunction

On October 22, 2021, Justice Dunphy of the Ontario Superior Court of Justice (the “Court”) issued an interim injunction against the University Health Network (“UHN”) preventing them from terminating six employees who refused to comply with their mandatory vaccination policy (the “Policy”). For those opposed to mandatory vaccination policies, this might have appeared to be a mini victory, but Justice Dunphy made it very clear that his decision lacked any determination on the merits of the claims advanced. In other words, Justice Dunphy took steps to preserve the status quo and prevent “irreparable harm” until he could hear submissions from all the parties involved the following week.

B.    Second Hearing

On October 28, 2021, Justice Dunphy heard submissions from three parties: the employer, the unions (intervenors), and the plaintiffs.  The issue at the heart of the hearing was not whether the Policy was unreasonable or infringed on the human rights of the plaintiffs. Rather, the primary issue was whether the Court had jurisdiction to grant the injunction and hear the matter as it related to the unionized plaintiffs. Both the employer and the union intervenors took the position that the matter as it related to the unionized plaintiffs fell solely within the jurisdiction of arbitrators, not the courts.

Justice Dunphy released his decision on October 29, 2021 declining to extend the injunction.

C.   Jurisdiction Issue

Referring to the Supreme Court of Canada’s 1995 decision in Weber v. Ontario Hydro, Counsel argued that there are two key questions: (1) what is the “essential character” of the issue; and (2) does the issue arise from the collective agreement. Counsel submitted that the reach of the collective agreement is enormous and deals with management rights, vaccines, health and safety policies, and termination. The question, then, is whether the “essential character” of the claims of the unionized plaintiffs is consistent with the broad ambit of the collective agreement. In this case, the essential character of the claim was the reasonableness of the Policy and termination of employment which, according to counsel, is the “bread and butter” of trade union work. The reasonableness of employer actions and terminations are issues that directly arise from the collective agreement and fall within the jurisdiction of arbitrators.

Counsel for the Plaintiffs argued that the Court retained jurisdiction with respect to the unionized employees on the narrow exception where the Court can grant remedies that lie outside the remedial authority of a labour arbitrator, including interlocutory injunctions, to ensure that there is no “deprivation of ultimate remedy”.

Justice Dunphy dispensed with the Plaintiff’s argument as follows:

[21]  As noted, each of the unions is in the process of pursuing a variety of individual and policy grievances in respect of the policy and have made the strategic choices they have made as to process and relief sought in their undoubted capacity as exclusive collective bargaining agent.

[22]  The plaintiffs are in effect calling into question the manner which those disputes are being resolved by the union.  They view interim relief as essential to preserve the utility of the other remedies being pursued.

[23]  This position of the plaintiffs must be considered in light of the fundamental labour relations principles that the court’s narrow residual discretion is intended to complement and not undermine.  The union is charged with the exclusive carriage of the grievances challenging this policy.  The unions have made a different choice than the plaintiffs and determined that the existing battery of available remedies (including reinstatement of employment) are adequate to redress the wrongs being alleged.  They have all had the time and opportunity to seek interim relief of the sort sought by the plaintiffs if they wished. None have done so; none have asked for time to do so.

[24]  In effect, the plaintiffs would have me substitute my judgment on the adequacy of the remedies pursued for that of the exclusive bargaining agent.  It seems to me that an approach of deference is called for and I would decline to disturb the judgment of the collective bargaining agents.  Such a deferential approach ensures that the residual discretion is confined to its proper auxiliary role.

D.   Non-Union Employees

Justice Dunphy also ended the injunction with respect to the non-union plaintiffs on the basis that the only remedy for an employee who is terminated from their employment is money. Injunctions are issued where there is the potential for “irreparable harm” to a plaintiff. Irreparable harm is generally not something that can be compensated for with a damage award. As Justice Dunphy put it:

[28]  As a general rule, private-sector employment may be terminated at will outside of the collective bargaining sphere in Ontario.  Where cause is not alleged, or if cause is alleged and not proved, compensation is payable to the employee.  The level of compensation may be a function of a written contract, of statutory minimum standards or of the common law.  Given that fundamental principle, it is hard to see how any plaintiff who is not in a union can allege irreparable harm arising from threatened termination of employment.  If the termination of their employment is not justified, they are not entitled to their job back – they are entitled to money.  Money, by definition is not only an adequate remedy it is the only remedy.

E.    Conclusion

Justice Dunphy’s decision signals that unionized employees will have an uphill battle should they seek the assistance of the Courts related to mandatory vaccination policies.  With respect to non-union employees, the decision does not answer the question of whether non-union employees who are terminated for non-compliance with a mandatory vaccination policy are entitled to reasonable notice. The decision also left open the possibility that employees who challenge policies based on human rights grounds may have some recourse to the Courts.

·       Mandatory Vaccination Policy Found to Be Reasonable

A.   Facts

In United Food and Commercial Workers Union, Local 333 v. Paragon Protection Ltd. the union filed a policy grievance challenging the reasonableness of Paragon Protection Ltd.’s (“Paragon” or the “Employer”) mandatory vaccination policy. The union also asserted that the policy violated the Ontario Human Rights Code (the “Code”).

The policy required all employees to be fully vaccinated by October 31, 2021, unless an exemption applied. Employees could request a medical exemption, or an exemption based on creed or religion.

The union argued that the policy was unreasonable and not in conformity with the principle of rules known as the KVP test:

A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites:

  1. It must not be inconsistent with the collective agreement.
  2. It must not be unreasonable.
  3. It must be clear and unequivocal.
  4. It must be brought to the attention of the employee affected before the company can act on it.
  5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
  6. Such rule should have been consistently enforced by the company from the time it was introduced.

The union submitted that the mandatory vaccination policy violated the Health Care Consent Act as it forced employees to be vaccinated “or else” be removed from the workplace.

Paragon argued that it implemented the vaccination policy in compliance with its obligations under the Occupational Health and Safety Act to maintain a safe workplace. Also, the policy was responsive to the company’s clients implementing their own vaccination policies which required anyone deployed to their sites to be fully vaccinated. The union did not challenge this assertion.

Further, Paragon argued that there were concerns raised by other employees about co-workers that were unvaccinated. The Employer argued that it is a customer-facing business and part of the service they provide to their clients is to screen others to ensure that they were vaccinated to gain entry to their clients’ facilities.

Paragon also referred to the provisions of their collective agreement that directly addressed vaccination requirements:

Article 24.05

If an employee is assigned to a site where specific vaccination and or inoculation is required by law or where conditions of contractors having access to the site stipulates specific vaccination and inoculation requirement, the employee must agree to receive such vaccination or inoculation. The Company shall provide access to any vaccination or inoculation and any cost for such will be borne by the Company. In addition, employees required to be vaccinated or inoculated on their own time shall be paid in accordance with the call in provisions of this Agreement. Where an employee refuses such vaccination or inoculation for any reason, the Company shall reassign the employee as per the relevant provisions of this Agreement.

B.   Decision

Arbitrator Von Veh found the Employer’s COVID-19 Vaccination Policy with the included exemptions to be reasonable, enforceable, and compliant with the Code and the Occupational Health and Safety Act (OHSA). He commented that the Employer had an obligation and responsibility to protect the health and safety of its employees pursuant to OHSA. In introducing the COVID-19 Vaccination Policy and the Exemption Policy, the Employer has taken “every precaution reasonable” to satisfy its obligation and responsibility under OHSA.

Arbitrator Von Veh also found that receiving the COVID-19 vaccine was voluntary. He noted that his findings do not negate the bona fide requests for COVID-19 Vaccination exemption requests pursuant to the Exemption Request Form provided by the Employer. Finally, he found that the “substantive and mandatory” principles of article 24.05 of the collective agreement had been correctly incorporated into the policy.

The grievance was dismissed.

·        Mandatory Vaccination Policy Found to Be Unreasonable (Electrical Safety Authority v. Power Workers Union)

A.   Facts

The union challenged the reasonableness of Electrical Safety Authority’s (the “ESA”) mandatory COVID-19 Vaccination Policy asserting that the policy was a significant over-reaching exercise of management rights, which violated the collective agreement and the employees’ privacy rights and right to bodily integrity. The union disputed that the ESA had any right to require employees to disclose their vaccination status, or to require employees to be fully vaccinated to maintain their employment.

The ESA also argued that mandatory vaccination rules and policies by third parties may interfere with their business and that they had a desire to bring employees back to the workplace by January 2022.

There are some key factual differences between the ESA case and the Paragon case. In the ESA case:

  • There was no collective agreement language addressing vaccinations.
  • Vaccinations had never been a condition of employment in the past.
  • The ESA had no workplace outbreaks throughout the entire pandemic with only a handful of employees testing positive and only two infections possibly being work-related before vaccinations became widely available.
  • All employees were issued PPE, including N95 masks.
  • 88.4% of employees were fully vaccinated and disclosed their status to the ESA.
  • A majority of the work undertaken by ESA employees can be done remotely and many employees have the right under the collective agreement to continue working remotely.
  • There was no evidence of interference with operations for ESA inspectors who are required to travel and attend at third party sites and are not vaccinated. Notably, the union conceded that they would have no issue with travel only being assigned to employees who are fully vaccinated.
  • Third parties who had vaccination policies that limit access to their premises also provide a testing alternative.
  • There were only two examples in the evidence of issues with third parties and ESA employees not being vaccinated.
  • No issues had been brought to the Joint Health and Safety Committee’s attention related to unvaccinated employees.

B.   Decision

Prior to implementing the mandatory vaccination policy, the ESA had implemented a voluntary policy that allowed employees who did not voluntarily disclose their vaccination status to be tested on a regular basis.  The union did not object to the voluntary policy and was publicly supportive of it.  Similar policies were implemented by other employers in the sector. Arbitrator Stout noted that “[t]here appears to be no significant change in the situation since the VVD/T policy was implemented in September 2021, other than a fear that mandatory vaccination rules and policies by third parties may interfere with the ESA’s business and desire to bring employees back to the workplace in January 2022”.

After considering final submissions made by both parties, Arbitrator John Stout found that the ESA’s current vaccination policy was unreasonable to the extent that employees may be disciplined or discharged or placed on unpaid administrative leave for failing to become fully vaccinated. He found that a testing regime was effective and that other options were available to the employer to protect the workforce without having to mandate vaccines:

[26]  I have been provided with no analysis of any workplace dangers or hazards associated with the ESA’s concerns. I have also been provided with no analysis or any substantial interference with the  ESA’s business. I have no evidence that these concerns have manifested themselves in any actual problems in the workplace that cannot be reasonably addressed under a policy that provides for a combined vaccination or testing regime or other reasonable means. At this point the ESA has legitimate concerns, but those concerns do not at this point justify imposing a mandatory vaccination regime with threats of discipline or discharge.

Arbitrator Stout was careful to limit his decision to the facts and evidence that were before him and acknowledged that with the dynamic nature of the pandemic, circumstances could change or be different and a mandatory vaccination policy may be reasonable. For example, Arbitrator Stout made the following obiter comments in the award:

[17] In workplace settings where the risks are high and there are vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated), then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.

[32]  …If, as this situation unfolds, the ESA is  placed in a situation where a significant issue arises with respect to accessing third-party sites to perform work, then the ESA may have cause to place an employee on administrative leave until they are vaccinated.

[39]  …If a health and safety problem arises in the workplace or if the number of unvaccinated employees creates real problems for the ESA’s business that cannot be addressed in any other reasonable way, then the ESA may need to take other measures, including placing unvaccinated employees on administrative leave. If the PWU objects to such measures, then the issue may be brought back before me on an expedited basis.

With respect to the union’s argument around privacy of personal health information, Arbitrator Stout maintained that disclosure of vaccination status must be voluntary:

[38]  All individual employee’s medical information must be kept safe, secure, and protected from disclosure.  Such medical information may only be disclosed with an employee’s prior consent. It is preferable that disclosure be limited to healthcare professionals, although one must be aware in a world where you are either fully vaccinated against COVID-19 or you are not, then it may not be possible to fully protect an employee from inadvertent disclosure. In addition, it is fair and reasonable for employees to have the option of granting the employer the right to disclose their vaccination status to third-parties for the sole purpose of accessing worksites. However, such consent should not be required, and any consent granted must be clear, knowledgeable and with the ability to be  withdrawn, see Part II,  s. 18 and 19 of the Personal Health Information Protection Act, 2004.

Despite this decision, Arbitrator Stout warned that his decision should “not be seen as any form of vindication for those who chose, without a legal exemption under the Ontario Human Rights Code, not to get vaccinated”. He then went on to caution employees refusing to get vaccinated:

[43]  Those individuals are in my view misguided and acting against their own and society’s best interests.  These individuals may also be placing their ability to earn a living in jeopardy.

·       Concluding Comments

The decision of one arbitrator is not binding on a different arbitrator appointed under a different collective agreement with a different factual matrix. These are early days in terms of arbitrators considering vaccination policies and there is no doubt that there will be differences of opinion going forward. Arbitrator Stout’s decision highlights the importance of presenting persuasive evidence regarding mandatory vaccination policies and why they are reasonable for particular workplaces. What is apparent from the outset is that each case will need to be assessed individually.