In March 2022, the Ontario Government removed many COVID-19 health measures, such as the need to wear masks in most indoor settings and vaccine passports. However, on April 22, 2022, the Government announced an extension until June 11, 2022, of the requirement to use masks in some settings, such as health care settings, long-term care homes and retirement homes.
There have been many arbitration decisions where unions have challenged employers’ mandatory COVID-19 vaccination policies, arguing that they are unreasonable and breach the relevant collective agreement. We look at two such recent decisions below, in which the arbitrators upheld the policies.
Despite the relaxation in restrictions, COVID-19 vaccination policies might remain reasonable. However, much depends on the particular circumstances of the workplace, so we suggest getting in touch with one of our well-respected labour lawyers.
In Unifor Local 973 v Coca-Cola Canada Bottling Limited, the employer, a bottler of beverages and soft drinks, announced a nationwide vaccination policy on October 26, 2021. Employees were advised to be fully vaccinated by January 1, 2022, or face consequences that might include discipline, including termination. The policy provided for accommodation consistent with human rights legislation for those employees not able to take a COVID-19 vaccine based on a protected ground.
After initially rolling out enhanced personal protective equipment for unvaccinated employees and then a rapid testing program, on January 12, 2022, the employer advised that unvaccinated employees would be placed on indefinite unpaid leave effective January 31, 2022.
The policy was challenged by the union, which represents approximately 700 employees. These employees must attend the workplace to perform their work, and the majority work in close quarters with fellow employees. COVID-19 has had a significant impact on the company, with two employees dying from the disease.
The union argued that the policy was not reasonable because less intrusive means, such as rapid testing, were sufficient to keep employees safe and allow the employer to meet its obligations under the Occupational Health and Safety Act 1990 (Act). The decision not to be vaccinated represented a strongly held personal belief. Finally, it puts employees in an untenable situation of choosing between their livelihood and bodily integrity.
Arbitrator Wright handed down a decision on March 17, 2022. He decided that the policy establishes a reasonable balance between an employee’s interest in privacy and bodily integrity, and the employer’s interest in maintaining the health and safety of the workplace.
He explained that under the Act, employers are required to take every precaution reasonable in the circumstances for the protection of a worker. He disagreed with the union that other means were sufficient to keep employees safe, given the close contact nature of the work and the fact that there was evidence that the testing regime implemented at the workplace failed to keep the workplace safe.
However, strongly held the belief not to be vaccinated might be:
it cannot, in my view, undermine the reasonableness of the Policy. Under the terms of this Policy, employees who can establish that they are unable to take any of the COVID-19 vaccines for a reason protected by the Ontario Human Rights Code, including on the basis of creed, are entitled to seek individual accommodation. Short of that, an employee’s personal belief—however strongly held—must give way to the health and safety concerns that animate the Policy. COVID-19 can lead to serious illness and death.
Finally, the decision between livelihood and bodily integrity is exceptionally hard for some employees to face and one that is only justified as a mandatory requirement “in the kind of extraordinary circumstances presented by the pandemic.”
The Arbitrator noted that it would be appropriate for non-compliant employees to be given to at least April 4, 2022, to commence the vaccination process before facing the potential for discipline.
In Extendicare Lynde Creek Retirement Residence v United Food & Commercial Workers Canada, Local 175, a union policy grievance case, the issue was a retirement home’s vaccination policy announced on August 26, 2021.
It required newly hired and existing employees to be fully vaccinated by October 12, 2021, subject to applicable accommodation requirements under the Human Rights Code. “Fully vaccinated” was defined to require the uptake of all booster vaccinations recommended by Health Canada from time to time and in the future. Employees were to be placed on an unpaid leave of absence if not fully vaccinated. The policy said that they might be subject to additional corrective action, including termination. The employer agreed that any further disciplinary action would be subject to review according to the just cause standard under the collective agreement.
Arbitrator Raymond issued a bottom line award on April 4, 2022, given the urgency. He decided that the policy remains a reasonable workplace rule, consistent with the collective agreement Act and Retirement Homes Act 2010.
The Arbitrator said:
this is my view even in the context of the Ontario Government and other public health authorities recently reducing or eliminating various vaccination and other COVID-19 related requirements for staff, contractors and visitors in the context of retirement homes, long-term care homes and, more generally, other facilities and venues.
Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Assistance with Collective Agreement Interpretation
Disputes over collective agreement language can be lengthy, costly, and ultimately disruptive to workplace relations. If you are an employer faced with a collective interpretation issue, contact one of the highly experienced and extremely well-respected labour lawyers at Grosman Gale Fletcher Hopkins LLP in Toronto. We have been helping unionized employers with their labour relations issues, including collective agreement-related matters, for more than 30 years. Please contact us online or at 416.364.9599 to schedule a consultation.
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