COVID-19 Update: Another Mandatory Vaccination and Masking Policy Upheld

In this Insights article, we review the decision on USPFRMEAISWIU, Local 5319 v Securitas Transport Aviation Security Ltd., which was released on On March 14, 2022.

In the past year, there has been expanding case law on mandatory vaccination and masking policies implemented by employers due to the dangers of COVID 19. This case provides a further support for an employer’s right to implement mandatory policies, in particular when required by law in the transportation sector.

The Facts

This specific case looks at whether an employer contravenes its collective agreement when it places employees on unpaid administrative leave because they do not comply with the mandated vaccination policy of a third party. In this case, the third party was the Government of Canada.

The employer provides airport security through airport screening in Nova Scotia. The Government of Canada on October 6, 2021 announced a vaccination mandate, which included the aviation industry. The employer had been communicating with employees that a mandate would likely be implemented since August of 2021, with notice being clearly posted for employees to see.

On October 29, 2021 the Employer advised its employees that it had received confirmation of the details of the vaccination policy from Transport Canada. It stated that the application date had been pushed back to November 15th, so that even those who were not vaccinated at all could continue working up to November 14th.   It also mentioned that employees who had received their first dose and had an appointment for a second dose could continue (providing they provided the required exemption form) working up to January 24, 2022.

The employer considered itself bound by the order and put employees that did not comply with it on unpaid leave until they provided proof of vaccination or a valid exemption. The union submitted that this breached the collective agreement.

The Decision

Arbitrator Richardson denied the grievance, although they acknowledged that it was not the employer that was at fault for the policy. The employer is required to comply with the policy, failing which neither the employer nor the employees could operate at an airport. The Government of Canada was requiring employees to be vaccinated, and although nothing in the collective agreement permitted the employer to place employees on unpaid administrative leave, the Interim Order resulted in no obligation on the part of the employer to pay the employee. Violating the Interim Order would result in unlawful conduct, and the employer cannot be faulted for organizing its operations to avoid such conduct. The relationship between the employer and employee must take the Collective Agreement into consideration, but it must also take into account the laws of Canada.

Why is this case important?

This case is an important decision regarding vaccine mandates by employers when it is required by statute or regulation. If an employer is subject to a statute or regulation that requires the implement of a vaccination mandate for employees, they are doing so because it is required by law. If a long term care home or other industry is subject to such regulations or statute, they are required by law to uphold the mandate, especially where the collective agreement does not specifically include language pertaining to a vaccination policy.

PooranLaw will continue to monitor the ongoing legal developments related to COVID-19. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.