Ontario Arbitrator Upholds Mandatory Vaccination Policy

On November 9, 2021, an Ontario Arbitrator released what appears to be the first decision dealing with the legality of a mandatory vaccination policy. 

The case involved a private sector employer, a security company which provides contract security guards for clients. The employer implemented a mandatory vaccination policy in response to the mandatory vaccination policies of clients who would not allow unvaccinated staff on their worksites, and to maintain a safe and healthy work environment for its employees, their clients, and the public. The policy provided for exemptions and accommodations for religious and medical reasons. Potential accommodations included being placed at a different worksite, participating in COVID-19 testing, or taking an unpaid leave of absence. The union, the UFCW, filed a grievance alleging that the policy violated the management rights and health and safety articles of the collective agreement and was contrary to the Ontario human rights legislation. 

Interestingly, the collective agreement between the parties already contained an article dealing with the requirement to be vaccinated/inoculated. The article provided that if an employee was assigned to a site where specific vaccination or inoculation was required by law or by a client worksite access rule, employees would agree to receive the vaccination or inoculation. The employer agreed to pay for the costs of the vaccination and was required to reassign any employee who refused the vaccination for any reason.

The union’s arguments against the policy included the following:

  • that a vaccine policy mandates the administration of a “treatment” without consent by someone other than a “health practitioner,” which is contrary to the Ontario Health Care Consent Act, 1996
  • that the policy was unreasonable because an employee who chose not to be vaccinated would be removed from the job site, perhaps be accommodated with work elsewhere, or placed on an unpaid leave of absence
  • there is insufficient scientific evidence to justify the need for a vaccination policy.

The employer made the following arguments:

  • the policy was reasonable and complied with the vaccination article in the collective agreement
  • the policy was reasonable in light of the employer’s duty and responsibility under occupational health and safety legislation to protect the health and safety of employees and prevent COVID-19 infection in the workplace
  • nothing in the policy violates human rights legislation – it provides for exemptions on protected grounds
  • the Health Care Consent Act is irrelevant because the employer is not a health care practitioner and is not forcing any employee to be vaccinated without consent.

The Arbitrator concluded that the policy was reasonable, enforceable, and compliant with the Ontario human rights legislation, finding that the policy struck an appropriate balance between the rights of employees who do not wish to be vaccinated while respecting a safe workplace for employees, clients, and the public. In reaching this conclusion, the Arbitrator relied upon the employer’s occupational health and safety obligation to take every reasonable precaution to protect its workers, the wealth of scientific information available with respect to COVID-19 and the pandemic, and the pre-existing vaccination article in the collective agreement. He also concluded that the Health Care Consent Act had no application to the policy. 

The decision is relatively short and not detailed in its analysis. It does not deal with privacy arguments related to the requirement to disclose vaccination information. It also seems that the parties did not call expert evidence with respect to COVID-19 or vaccinations, but relied upon publicly available information. 

It is also important to remember that the collective agreement in question had a unique provision which expressly required employees to comply with vaccination policies where required by clients. As such, the precedential value of this decision remains to be seen, but it may assist other employers who have chosen to implement mandatory vaccination policies. It should assist employers in industries that are subject to site access requirements of clients. It is less relevant to policies without that dynamic.

This arbitration decision comes on the heels of an Ontario court’s decision to dismiss an application by a group of employees for an injunction preserving their employment status in the face of a mandatory vaccination policy implemented by the University Health Network. In that case, the Court found that the unionized employees involved in the application had no standing to bring the application because that right belonged to their Union, and the non-unionized employees could not show that there would be irreparable harm to them if the injunction was not granted. 

In light of the fact that employers have a right to terminate non-unionized employees both with cause, or without cause at any time, the Court determined that any harm could be remedied with an award of damages. While the decision is not a determination of the merits of the vaccination policy, it is useful for employers who might be faced with similar injunction applications. 

We will continue to keep you updated as case law develops with respect to mandatory vaccination policies. In the interim, if you have questions about implementing or enforcing your policy, you can contact any of the lawyers in our Labour and Employment group.