The issue of vaccination at work continues to be a hot topic for reasons that require no elaboration. We have discussed this issue on numerous occasions here and here and here. Our musings thus far were largely theoretical or based on case law derived from pre-pandemic circumstances. The rubber has finally hit the road and there are now two decisions on the enforceability of COVID-19 vaccination policies at work. It should be stressed that both decisions are from the unionized context.
The first of the above-mentioned decisions is United Food and Commercial Workers Union, Canada Local 333 – and – Paragon Protection Ltd (“Paragon”). In Paragon, Arbitrator F.R. Von Veh upheld the reasonableness of a COVID-19 vaccination policy that was implemented by the employer. Arbitrator Von Veh made a few statements worth noting. The Arbitrator held that “there is a wealth of scientific information available on the pandemic and COVID-19. I find that personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.” Arbitrator Von Veh also stated that his findings in this regard “in no way negate bona fide requests for COVID-19 Vaccination Exemption Requests.” Importantly, in this case, the parties actually had a term in the collective agreement that spoke directly to certain vaccination requirements in certain contexts.
The second of the above-mentioned decisions is Electrical Safety Authority – and – Power Workers’ Union (“Electrical Safety Authority”). Arbitrator Stout did not uphold the COVID-19 vaccination policy of the employer as reasonable in this case. However, in making his pronouncements he also wanted to “ensure that [his decision] is not seen as any form of vindication for those who choose, without a legal exemption under the Ontario Human Rights Code, not to get vaccinated” and that “this case is not about the merits of being vaccinated or the effectiveness of COVID-19 vaccines.” Fundamentally, Arbitrator Stout found that the collective agreement between the parties was silent on specifically addressing vaccinations and that context matters. Arbitrator Stout also held that individual rights to privacy, personal autonomy, bodily integrity as well as rights under the Charter are fundamental to a just and democratic society. However, these individual rights are not absolute and there are circumstances where the rights of the collective outweigh the rights of the individual.
Arbitrator Stout spoke of the application of a nuanced contextual approach as being important when assessing the reasonableness of a workplace rule or policy that may infringe upon individual employee rights. Regard must be had to workplace settings where the risks are high and there are vulnerable populations. Arbitrator Stout also specifically distinguished the Paragon decision in stating that it arose in a different context involving a different union and a different employer.
Over the last few months, our firm has been inundated with inquiries from both employers and employees on the issue of the enforceability of COVID-19 mandated vaccination at work. The question concerning vaccine enforceability at the workplace has understandably become a key concern for everyone involved. The basic question is whether the employer can fire an employee regardless of context if there is a mandated COVID-19 vaccine policy in place in that workplace. Paragon and Electrical Safety Authority do not provide complete answers in this unchartered area of employment law or labour law, however, these decisions do represent the beginning of a jurisprudential evolution on the issue of COVID-19 vaccination at work. We would add that given the number of key considerations that arbitrators have already begun to grapple with, a similar contextual approach will likely be mirrored by the courts with respect to the majority of employees in Ontario who are non-unionized.