First COVID-19 Vaccination Policy Labour Case Sides With Employer

In major news for employers supporting vulnerable persons, an Ontario labour arbitrator has upheld a mandatory vaccination policy in an Ontario workplace. This decision now stands as the first and sole authority on mandatory COVID-19 vaccination in the workplace, providing our first authority that such policies will be enforceable in a unionized context. While employers won’t necessarily be on terra firma until we have a few decisions fleshing out all of the principles, this is fantastic news for the sector.

The Decision

The decision was between Paragon Protection Ltd. and UFCW, Local 333 and heard before Arbitrator Von Veh in October.

The employer, a security company, had issued a mandatory COVID-19 vaccination policy for all staff, requiring them to receive a first dose by September 30th, 2021 and a second dose (if part of a two-dose series) by October 31, 2021. The policy provided a procedure for those seeking accommodation on human rights grounds. The consequence for non-compliance with the policy was the possibility of discipline up to and including termination. The collective agreement between the parties recognized that employees may have to be vaccinated in some circumstances, but this policy went beyond those circumstances.

The Union raised the following arguments against the policy:

  1. Mandatory vaccination in the workplace was prohibited by the Ontario Health Care Consent Act, 1996, which requires “treatments” to be based on free consent and administer by a “health practitioner” (which the employer was not);
  2. The fears of individual members about health issues resulting from vaccines should be respected;
  3. The policy was an intrusion on bodily autonomy;
  4. The rule was not consistent with the prior influenza vaccine decisions; and
  5. The rule was an unreasonable exercise of management rights.

The Arbitrator issued a relatively short decision rejecting each of the Union’s arguments:

First, the vaccination policy was found to be justified by the Employer’s obligations under the Occupational Health and Safety Act to take every precaution reasonable in the circumstances for protection of its workers.

Second, the policy was also found to be voluntary as well, despite imposing consequences for non-compliance. The fact that there were consequences for non-compliance for those without a medical accommodation was not enough to negate that.

Third, the Arbitrator rejected the idea that individual subjective fears about vaccine safety should override the wealth of scientific evidence available about the pandemic, COVID-19, and the vaccines.

Fourth, the Arbitrator outright rejected the application of the Health Care Consent Act. It simply did not apply to this type of employer.

Finally, the Arbitrator rejected the application of the pre-pandemic influenza vaccine cases, given that they were not decided under pandemic conditions and dealt with a different and less serious illness with a less effective vaccine.

Overall, the Arbitrator found that the policy was reasonable and compliant with the Human Rights Code (relying on recent guidance from the Ontario Human Rights Commission on mandatory vaccine policies).

The Implications for the DS Sector

This decision is a massive win for employers who have implemented mandatory vaccine policies. If such a policy is reasonable for security guards, it is very likely to be reasonable for agencies caring for vulnerable people.

The case is also useful for rejecting the application of the Health Care Consent Act, 1996 to the employment context. That argument had been thrown about by some employees as an argument against an employer’s power to issue these sort of policies (though it was always highly likely that that Act would not apply).

However, while this case will make arguments in favour of vaccination policies much easier, it is not yet a complete defense. The decision has a number of features that may be challenged by unions:

  • The decision is relatively brief and very close to a “bottom line” decision without a detailed analysis of the arguments at stake. That may make an arbitrator less likely to rely on it in future.
  • It isn’t clear from the decision that the Union presented the most fulsome case possible based on pre-COVID-19 vaccination case law and other available legislation. A union may in future bring other arguments that are more convincing to an arbitrator.
  • It isn’t clear that detailed expert evidence was given – expert evidence was determinative in some of the pre-COVID-19 vaccination case law and could influence the outcome in future.
  • The case did not clearly endorse the employer’s power to discipline or terminate employees for non-compliance, leaving this power to be implied by merely upholding the policy as being reasonable.
  • While decision by labour arbitrators tend to influence other arbitrators, arbitrator decisions are not binding. Only once a clear body of case law has been developed from several cases will outcomes at arbitration begin to become very clear ahead of time.

Employers also are still awaiting case law from the non-union context to provide clarity on their obligations.

Despite these areas of concern, the case remains a very important ruling, and will hopefully be followed by other decisions fleshing out the holding.

PooranLaw will continue to monitor legal developments related to workplace vaccination policies and provide updates online. In the meantime, if you require legal assistance in determining how these policies apply to your organization, 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.