In this article, we will review two new decisions that have recently expanded the case law on mandatory vaccination policies implemented by employers due to the COVID-19 pandemic. First, we will review Extendicare Lunde Creek Retirement Residence v UFCW, Local 175, and then Maple Leaf Foods Inc., Brantford Facility v. UFCW, Local 175. Each of these decisions upholds a vaccine-or-leave policy in the context of recently eased pandemic-related restrictions in Ontario.
CASE 1: Extendicare Lunde Creek Retirement Residence v. UFCW, Local 175
In a short decision between the Extendicare Lynde Creek Retirement Home and UFCW Canada, Arbitrator Raymond upheld a vaccine-or-leave policy. This decision concerned a union policy grievance against a vaccination that required all employees to be fully vaccinated and receive all booster vaccinations that are recommended by Health Canada from time to time in the future. The policy stated that employees who are not fully vaccinated are placed on an unpaid leave of absence, and if they continue to remain unvaccinated “may be subject to additional corrective action up to and including termination of employment”.
Importantly, the arbitrator said that the government’s recent reduction of its own public health measures and other vaccine rules had no impact on his findings, and the employer had standalone duties that justified such a policy. This can help to assuage some of the concerns that the DS sector and other congregate living settings have been discussing over the past month on the impact these government ‘reopening’ plans may have on DS employer policies.
Arbitrator Raymond also upheld the policy’s requirement that employees receive all booster shots as recommended by public health authorities now or in the future, which in effect requires booster shots.
CASE 2: Maple Leaf Foods v. UFCW, Local 175
In an Ontario labour arbitration decision dated April 10, 2022, Arbitrator Chauvin also upheld a vaccine-or-leave policy and did so considering similar issues to those in Extendicare. In the case of Maple Leaf, the employer had a verbal conversation with union leaders regarding the company’s intention to roll out a vaccination policy in order to protect its employees from COVID-19 and reduce the risk of plant closure. Throughout December 2021, the company continued to speak to the union about this intention and distributed an initial vaccine requirement memorandum to employees at the plant along with a questions and answers sheet which included the expectation that all employees were to be fully vaccinated by March 31, 2022. In January 2022, posters were placed in different areas around the plant, and the company continued to follow up with employees who had not submitted their vaccination status. On January 28, 2022, the company released the vaccination policy which indicated, among other things, that if proof of full vaccination has not been provided before March 31, 2022, the employee will be placed on an unpaid leave.
The Union submitted that the policy was unreasonable and unenforceable for a number of reasons, including that as of March 28, 2022, COVID-19 had receded, had diminished risks, and was no longer an exceptional threat to health. The Union also noted that the language that employees not complying with the policy “will be subject to further discipline, up to and including termination” (emphasis added) was unreasonable.
Arbitrator Chauvin ultimately agreed with the employer’s position that the policy was reasonable, taking into consideration the nature of the workplace and that workplace conditions of a food processing plant heighten the risk of the infection and spread of COVID-19 within the plant. Arbitrator Chauvin also did not accept that, as of April 2022, COVID-19 had receded or had diminished risks—the pandemic remained a risk to health and safety. The arbitrator concluded that it was difficult to predict which, if any, of the precautionary measures can be safely reduced or eliminated with statistics in April 2022 demonstrating increased infections, hospitalizations, and what is now being referred to as the sixth wave of COVID-19 with a new variant.
Importantly, at paragraph 58 of the decision, Arbitrator Chauvin determined the following with respect to discipline and notice of discipline under the vaccination policy:
“Finally, the Company asked me to opine upon how long the Company should wait before it chooses to discipline or discharge an employee who has failed to become vaccinated. It is difficult to provide a “one size fits all” answer to this question. As stated above, any discipline or discharge of any employee depends upon the facts of their case. Employees who seek and obtain an exemption due to medical reasons or grounds protected under the Human Rights Code cannot be disciplined or discharged, but rather must be provided with reasonable accommodation, if it is possible to do so. Where these circumstances do not apply, there may be other factors that are relevant to the decision to impose discipline, and when to do so. For instance, the employee may now be trying to become vaccinated, but may be encountering difficulties or delays in doing so. There may be other factors that are unforeseeable at this time. Accordingly, it is difficult to provide one fixed timeline for all of the employees for when discipline or discharge can be imposed, and it will have to be assessed when the discipline is imposed whether just cause exists. However, it may be helpful to the employees to inform them that if they remain unvaccinated for two months, being May 31, 2022, they may very well be subject to discipline or discharge, in accordance with the principles discussed above.”
Takeaway
These decisions are positive developments for employers, particularly those in the DS sector, congregate living settings, or any employer that works with a vulnerable population. These decisions indicate that policies including the threat of discipline or termination for continued non-compliance would be reviewed on the just cause standard if it was relied on in the future, and also indicate that any discipline or discharge of any employee under such policies will largely depend on the facts of each unique case.
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.
