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A Complete Rundown of COVID-19 Vaccine Policy Decisions in Ontario

Updated: July 20, 2023

As courts and arbitrators continue to answer the burning questions around the enforceability of COVID19 vaccination policies, CCPartners have been blogging on these decisions.  However, these decisions continue to be highly contextual and complex, making it challenging for even the most diligent employer to remain apprised of the ongoing state of this issue. With this in mind, we have prepared this blog to provide a chronological rundown of all the COVID-19 Vaccine Policy decisions which have been rendered in Ontario to date and are re-releasing the most updated version as employers continue to feel the lingering effects of the COVID-19 Vaccine.

JUNE 29, 2023: Central West Local Health Integration Network v Canadian Union of Public Employees, Local 966, 2023 CanLII 58388 (ON LA)

The COVID-19 Vaccination Policy:

The Employer notified its employees on September 1, 2021 that it was implementing a mandatory vaccination policy that required employee’s to be vaccinated unless they could establish the basis for a medical or human rights exemption. Failure to comply, the policy said, “…will result in progressive discipline, up to and including an unpaid leave and/or termination”. On September 15 and 16, 2021, non-disciplinary letters indicating an expectation of compliance with the Policy by September 30 were sent to employees not in compliance with the Policy. On October 1, 2021, the Employer’s began holding discipline meetings with employees who were not in compliance with the Policy and suspensions commenced following each meeting. Throughout October, employees that provided proof of having received 1 dose were returned to work within 1 to 2 days. Final warning letters were issued to employees still not in compliance by October 18 and termination meetings were held in early November with employees not in compliance with the Policy.

The Union challenged the “reasonableness” of the policy and submitted that even if the requirement to be vaccinated in order to work was reasonable, the unvaccinated should not have been subject to discipline. They should, instead, have been placed on non-disciplinary unpaid leave until the Employers could demonstrate some harm to their legitimate business interests.

The Decision:

The Arbitrator dismissed the Union’s grievances that the employer’s COVID vaccination policy was unreasonable and found that it did not conflict with any specific provisions of the collective agreement. The Arbitrator held that “there is no question that non-compliance with an otherwise reasonable Covid-19 mandatory vaccination policy can be the subject of discipline”. He went on to write, “Nor, in my view, can it reasonably be suggested that placing employees on indefinite unpaid leaves of absence is, in any way, an alternative means of accomplishing the goals and objectives of the policy. The goal of the policy is to keep employees safe and working; it is not, as the Employers highlighted here, to keep employees safe and not working.”

APRIL 26, 2023: Lakeridge Health v CUPE, Local 6364, 2023 CanLII 33942 (ON LA)

The COVID-19 Vaccination Policy:

The Employer notified its employees on October 1, 2021 that it was implementing a mandatory vaccination policy that required employees to be vaccinated by October 29, 2021. The employees were notified that if they were not vaccinated by that date their employment might be terminated. The Union grieved the Hospital’s mandatory vaccination policy and argued that certain aspects of the vaccination policy were unreasonable, including the dismissal of unvaccinated employees. The Union acknowledged that the Hospital could reasonably have placed unvaccinated employees on unpaid leaves of absence until June 2022 but that after this date the employer should have returned the employees on leave to active employment.

The Decision:

The Arbitrator concluded that the mandatory vaccination policy “… was reasonable in all the respects it is challenged, except that the terminations should not have been imposed earlier than four weeks after an employee was placed on unpaid leave” (para 211). The Arbitrator wrote that “…the reasonableness of terminating unvaccinated employees, as with the overall Policy, must be assessed in context, a large hospital that provided essential health care services to the community, including acute care, ambulatory care, and long-term care services, at a time when the communities it served were experiencing severe COVID-19 infections and consequences and the need for the Hospital to maximize the services it could provide was absolutely critical” (para 177).

The Arbitrator found that the Hospital was facing serious challenges in providing these services due to the number of infected patients and understaffing and found that “a failure of all active employees to get vaccinated against COVID-19 was highly likely to negatively affect the Hospital’s ability to provide its health care services to the public” (para 177). The Arbitrator also found that it was reasonable for the Hospital to conclude “that it would likely have far more vacancies to fill if employees were kept on unpaid leaves and not terminated, as employees would try to find work elsewhere while waiting to be allowed to return to [the Hospital]” (para 179).

The Arbitrator concluded that “[t]he need to protect the health of its employees and patients, and to act in a way that enabled the Hospital to continue to provide its services in a relatively safe manner, outweighed the rights of individual employees to preserve their employment status when they declined to get vaccinated” (para 184).

MARCH 23, 2023: Teamsters Canada Rail Conference v VIA Rail Canada Inc., 2023 CanLII 18498 (CA SA) (Federal Decision)

The COVID-19 Vaccination Policy:

The Employer implemented a mandatory vaccination policy and terminated an employee with 19 years of service for not providing proof of vaccination against COVID-19. The Employer argued that the employee’s dismissal was an administrative dismissal rather than a disciplinary dismissal. The union argued that the Employer’s actions were disciplinary and that the dismissal was void because the mandatory process for implementing discipline set out in the collective agreement was not followed.

The Decision:

The Arbitrator concluded that the termination of the employee’s employment was a disciplinary measure and that since the Employer did not comply with the provisions of the collective agreement, the dismissal was void. Furthermore, the Arbitrator concluded that the Employer did not have just and sufficient cause to dismiss the employee, and ordered the reinstatement of the employee.

The Arbitrator found that the dismissal was disciplinary because the mandatory vaccination policy outlined the applicable penalty for unvaccinated employees and the Employer also added disciplinary consequences for non-vaccinated employees. The policy stated that employees who are not fully vaccinated would be “… immediately placed on administrative leave without pay and their status as employees will be reviewed and subject to disciplinary measures, up to dismissal.”

The Arbitrator relied on previous findings by other Arbitrators who concluded that discipline, at least initially, was unreasonable for employees who did not comply with policies addressing COVID-19. The Arbitrator found that the Employer could not explain why it felt it was necessary to dismiss the employee rather than keep him on a leave without pay. Accordingly, the Arbitrator concluded that the policy was unreasonable at least in regards to the disciplinary measures.

FEBRUARY 21, 2023: Croke v. Vu Point Systems Ltd., 2023 ONSC 1234 (CanLII)

Federal Decision

The COVID-19 Vaccination Policy:

The Employer is a designated installer and service provider for Bell and about 99% of its revenue comes from its contracts with Bell.  On or around September 8, 2021, Bell told the Employer that its installers would be required to receive two doses of an approved COVID-19 vaccine.  As a consequence, the Employer adopted its own mandatory vaccine policy stipulating that unvaccinated installers would not be able to work for Bell customers, and may not receive any job assignments.

The employee was a service technician with the Employer from 2014 until 2021 and was only paid for jobs completed, rather than receiving a regular wage or salary. The employee did not comply with the vaccine requirement and the Employer gave him two weeks’ notice of termination and severance pay, compliant with the Canada Labour Code which applies to federally-regulated employers such as telecommunications providers. The employee brought a claim against the Employer for wrongful dismissal. The Employer denied that it had wrongly dismissed the employee and relied on the doctrine of frustration, arguing that Bell’s vaccination mandate was an unforeseen supervening event that frustrated the employment contract.

The Decision:

The Court agreed with the Employer and ruled that Bell’s implementation of its mandatory vaccine condition on all subcontractors in order to be eligible to perform installations services was the unforeseen occurrence, not contemplated by either party to the employment agreement. here was no default in the employment agreement by either the employee or the employer.  The employee’s complete inability to perform the duties of his position for the foreseeable future constituted a radical change that struck at the root of the employment contract, resulting in the frustration of the contract.  The employee was not owed any notice of termination pursuant to the common law.

JANUARY 23, 2023: Cecchetto v. Canada (Attorney General), 2023 FC 102 (CanLII) (Federal Decision)

The COVID-19 Vaccination Policy:

The Employer did not have a personalized vaccination policy but followed the rules set out in the Directive issued by Ontario’s Chief Medical Officer of Health. The Applicant, who had been employed with the Hospital since 2017, participated in an education session regarding vaccines, pursuant to the Directive, but did not get vaccinated or provide antigen test results as he was required to do by the provisions. As a result, he was put on unpaid leave and then dismissed from his employment.

The Applicant applied for Employment Insurance (“EI”) but the Canada Employment Insurance Commission (the “Commission”) denied his application, finding that the Applicant had lost his job due to misconduct. The Applicant asked for reconsideration, but the Commission did not change its decision. Next, the Applicant appealed the Commission’s decision to the SST which considered two main issues: why the Applicant had been terminated and whether the reason for termination amounted to misconduct. Based on evidence offered by the former employer, the STT found that the Applicant was aware that a refusal to follow the directive would result in job loss, yet he was unwilling to be vaccinated and would not submit antigen test results. Therefore, the SST found the applicant engaged misconduct which disentitled him to EI.

The Applicant then sought leave to appeal the SST’s decision but was denied by the Appeal Division. The Appeal Division noted that in assessing whether to grant leave to appeal its role is not to evaluate whether the employer’s decision to dismiss the employee was valid but to determine whether the Applicant was guilty of misconduct and whether that misconduct led to his dismissal. As the Applicant’s refusal to follow the Directive was willful and his refusal to comply was the reason for his dismissal, the Appeal Division found that the Applicant had not demonstrated that his appeal had a reasonable chance of success. In the context of EI eligibility employees do not have to act with malicious intent in order for an action to be characterized as misconduct. To be considered misconduct the actions only must be performed consciously, deliberately, or intentionally.

The Applicant then sought judicial review of the Appeal Division’s denial to grant leave to appeal. In the written submissions the Applicant made several claims, including that he was discriminated against for his “personal medical choices”; that vaccines are being forced on people despite not yet completing safety and efficacy trials; and that alternative exemptions for completing an education course or having natural immunity are ignored.

The Decision:

The Court immediately noted the Applicant’s frustration that none of the decision-makers have addressed what he sees as the fundamental issues, some of those being the importance of bodily integrity or consent to medical testing. However, as noted by the Court, the previous decisions were not unreasonable for not addressing those issues. The lower decisions only had the jurisdiction to decide on whether or not he was terminated for misconduct, not whether that misconduct was justified.

The Court concluded that the SST reasonably determined that the Applicant had committed misconduct. The SST had noted that the Applicant admitted he heard about the consequences of non-compliance and received repeated notification of the declaration verbally and over email. The Applicant had several opportunities to remedy his behavior but did not do so.

In his arguments the Applicant also pointed to AL v Canada Employment Insurance Commission, 2022 SST 1428, a recent decision from the SST that found that an employee’s failure to comply with the employer’s vaccination policy was not considered misconduct for the purposes of EI eligibility. The Court concluded that the decision did not support his claim and did not establish a blanket rule that violation of vaccination policies does not amount to misconduct. Based on the foregoing, the application for judicial review was dismissed.

NOVEMBER 22, 2022: National Organized Workers Union v Sinai Health System, 2022 ONCA 802 (CanLII)

The COVID-19 Vaccination Policy:

The Employer notified employees that it would be implementing a mandatory vaccination policy on October 26, 2021. The policy required all employees to be fully vaccinated against COVID-19 by December 9, 2021 or their employment would be terminated, subject to medical or non-medical exemptions. The employer outlined several reasons for the mandatory policy including: (1) the unreliability of rapid antigen testing; (2) problematic compliance rates among staff under the “vaccine or test” approach; (3) specific incidents of the respondent’s staff being denied access to partner hospitals because they could not show proof of vaccination, which jeopardized urgent patient care; (4) the Ontario COVID-19 Science Advisory Table’s strong support for a vaccine mandate for hospital workers; (5) the Ontario Hospital Association’s recommendation for a vaccine mandate; and (6) the conclusion of an operational risk assessment undertaken by the respondent.

The Union filed a number of grievances against the Policy alleging that it was unreasonable and violated various articles of the collective agreement as well as various pieces of legislation. The Union brought an application seeking an injunction to enjoin the respondent from enforcing the Policy pending arbitration.

The Decision:

The application judge declined to award an injunction on the basis that the unionized employees did not have a standing to bring the case forward and that the non-unionized employees would not suffer any irreparable harm from the policy.

On appeal, the Court considered whether they should interfere with Justice Dunphy’s discretionary decision not to grant an injunction while parties await arbitration. Since the original decision was a discretionary one it attracted significant deference from the ONCA and could only be set aside if it was based on an error of law or a palpable and overriding error of fact.

The Ontario Court of Appeal unanimously upheld the lower court’s refusal to grant an injunction against the COVID vaccination policy. The court determined that the judge made no palpable and overriding factual error as the harm in question was the potential for being placed on leave without pay or being terminated under the vaccination policy. However, this was a harm that could be remedied by an arbitrator and therefore could not be considered irreparable.

SEPTEMBER 26, 2022: Parmar v Tribe Management Inc., 2022 BCSC 1675 (CanLII)

The COVID-19 Vaccination Policy:

The Employer notified employees that it would be implementing a mandatory vaccination policy on October 5, 2021 by attaching it to an email to all employees. The email advised that the policy was based on guidance from the CDC and provincial public health offices. The policy required all employees to become fully vaccinated by November 24, 2021. The policy provided for medical or religious exemptions and allowed extra time for those employees who were unable to meet the deadline. It also allowed the policy to be modified based on public health guidelines and best practices regarding COVID-19 as the vaccines are changing as new information becomes available. The employer reserved the right to modify the policy at any time at its sole discretion to adapt to changing circumstances. The employer also implemented a hybrid work model which would allow employees to work partly in the office and partly at home. However, the hybrid model was not a COVID mitigation strategy but a retention tool for employees. Therefore, it was not an alternative to vaccination. The employee argued that she did not want to be vaccinated as she had numerous family members and acquaintances who were negatively affected by the vaccine. The employee was placed on an unpaid leave of absence due to her refusal to be vaccinated. The employee argued that the unpaid leave was a constructive dismissal.

The Decision:

When considering whether the employee was constructively dismissed, the Court noted that there were several characteristics of her leave of absence that made it clear that it was not a termination. First, that it was only for a period of three months and was subject to review. Second, that the employee continued to receive benefits. Last, that the employer never replaced the employee, the intent was for her to fulfill a new role as a valued employee. Based on those circumstances, the Court found that the it was the employee who resigned. The Court additionally noted that the contract of employment expressly required the employee to follow workplace policies. Therefore, the pertinent issue was whether the policy itself was reasonable.

The Court found that the policy was reasonable and lawful. The Court noted that the employee’s personal beliefs and autonomy did not entitle her to potentially harm fellow employees. The Court found that when assessing a policy, they are not to ask whether it was a perfect policy but instead the Court should be considering whether it was a reasonable approach at the time it was actioned. In its finding, the Court also took note of the severity of the virus and the efficacy of the vaccine to reduce negative outcomes. As well, that vaccine policies were the prevailing approach at the time it was introduced. The Court also recognized that the employer was obligated under the Workers Compensation Act to ensure the health and safety of its employees.

AUGUST 30, 2022: Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), 2022 CanLII 78173 (ON LA)

The COVID-19 Vaccination Policy:

The Employer originally put their vaccination policy in place when a directive was issued by the Ontario Government to implement a vaccination policy in all long-term care homes. The Government later announced that it would require all workers in long-term care homes to have three doses of the vaccine. The Employer followed this updated directive and amended its policy to reflect the change. The Directive was revoked by the Government on March 14, 2022. The Employer chose to proceed with its policy beyond the date of revocation.

The Decision:

Arbitrator Raymond found the policy to be reasonable. Responding to the Union’s first claim that the policy was inconsistent with the Collective Agreement, Arbitrator Raymond found that there was nothing within the Collective Agreement that created an inconsistency between the Agreement and the policy.

Arbitrator Raymond also dismissed the Unions second claim that the policy is unreasonable due to the revocation of the Directive and the improper balance between the policy and employee interest. While the Arbitrator acknowledged that the employees’ interest of bodily integrity are real and serious, the Employer had no choice but to make a mandatory vaccination policy as obliged by the Government Directive. When the Directive was revoked, the Employer reasonably chose to maintain the policy. The decision to continue was reasonable as the Employer did so to protect the health and safety of employees and residents, as required by their statutory obligations. In addition, the workplace itself was particularly vulnerable as the workplace is a long-term care home with residents that could have been seriously affected by the virus.

Finally, Arbitrator Raymond dismissed the Unions final argument that the Employer failed to consult the Union about the vaccination policy. Arbitrator Raymond did note that it was concerning that the Employer chose not to consult the Union. However, he determined that this could not form a basis for a Collective Agreement violation unless there is language in the agreement that requires consultation, which is not the case for this agreement. Additionally, the relevant test is for unilaterally imposed policies. If there was consultation, the policy would not qualify as unilateral. Therefore, the policy was found to be reasonable and enforceable.

JUNE 17, 2022: FCA Canada Inc. v Unifor, Locals 195, 444, 1285, 2022 CanLII 52913 (ON LA)

The COVID-19 Vaccination Policy:

The policy required, in part, that employees, contractors, suppliers, and visitors were required to be fully vaccinated with two doses of a two-dose vaccine in order to attend the workplace. If an employee did not abide by this requirement of the policy, they would be placed on unpaid leave of absence, and possibly terminated for non-compliance. At hearing, the Union argued that recent scientific studies had shown that two-dose vaccines were no longer effective against transmitting COVID (specifically with regard to the vaccines’ effectiveness against the Omicron variant). Hence, the Union argued that the vaccination policy be deemed unreasonable, and employees who are on unpaid leave be fully compensated.

The Decision:

The Arbitrator took care to review previous decisions upholding the reasonableness of workplace COVID-19 vaccine policies. In particular, she rejected the idea that employees had a blanket entitlement to remain unvaccinated without consequence. She observed that there was no “right” to remain unvaccinated and remain in active employment. However, it was a factual finding based on the available studies that the Arbitrator found compelling. She decided that “Emerging evidence does indicate that a two-dose vaccine regimen provides significantly less protection against infection from Omicron and its sub-variants than with prior variants.” Arbitrator Nairn declared the policy to be of no force or effect as of June 25, 2022.  However, she left the door open for the Employer to revise the policy rather than vacate it altogether.

The COVID-19 Vaccination Policy:

On December 13, 2021 the Company, Maple Leaf Foods, handed out an initial vaccine requirement memorandum after partaking in multiple conversations with the Union to advise them of the Company’s intention to roll out the vaccination policy. On January 28, 2022 the Company released its COVID-19 Vaccination Policy. The Policy stated the same information that was in the December 13, 2021 memorandum communicated to the employees that they must be fully vaccinated by March 31, 2022 or they would be placed on unpaid leave and would be subject to further discipline, up to and including termination. Accommodation would be provided to employees who were not able to take a vaccine based on a protected ground under human rights legislation. The Union argued that the policy was unreasonable and unenforceable for four reasons. First, that there were other reasonable alternatives available to the Company to protect the health and safety of the employees. Second, that the competing interest are improperly balanced as the Company’s interest in protecting the health and safety of its employees and its business was outweighing the employees interest in protecting their privacy and preserving their bodily autonomy. Third, that COVID restrictions were being reduced and the threat of COVID had diminished greatly and that the requirement of mandatory vaccination is no longer justifiable or reasonable. Lastly, that subjecting employees who refuse vaccination to discipline, and possibly termination, is unreasonable.

The Decision:

Arbitrator Chauvin dismissed the grievances and held that the Policy was reasonable and enforceable. The policy was considered reasonable when considering the nature of the workplace. The employees were essential workers and had to interact very closely together. Despite taking significant measures to avoid infection, the company experienced COVID outbreaks that had major consequences for the Company and the community’s food supply. Arbitrator Chauvin dismissed the Union’s second argument by finding that the policy appropriately balanced the interest of both parties since it provided for accommodation and only senior level personnel had access to vaccination status information. Moreover, the implementation of the policy was found to be reasonable as the Company clearly communicated its intentions to the Union in advance. The policy and the consequences of non-compliance was also clearly communicated to employees. The discipline aspect of the policy itself was considered reasonable as it allowed for Union grievance and was to be decided on a case-by-case basis according to a “just cause” standard. It is important to note that Arbitrator Chauvin spoke on the amount of time an employer should wait until they turn to discipline and he stated that while a fact-specific analysis is required, it is helpful to inform employees that they could be disciplined or discharged if they remain unvaccinated for two months.

APRIL 4, 2022: Fraser Health Authority v British Columbia General Employees’ Union

COVID-19 Vaccine Policy Details:

The Provincial Health Officer of BC issued an Order (the “PHO Order”) requiring all health authority employees to obtain vaccination against COVID-19 in order to be eligible to work. The only exemption was on narrow medical grounds and there was no exemption for religious reasons.

The Grievor had expressed her strong objection to vaccination on a number of occasions. Upon meeting with the Grievor, she indicated that she objected to vaccination on religious grounds, and that she felt the PHO Order was unlawful and violated the Charter of Rights and Freedom. However, the Union confirmed there is no religious discrimination component to this grievance. Consequently, the Grievor was placed on a three (3) week unpaid leave of absence, before she was terminated for cause.

Decision:

The Arbitrator began by clarifying that this case was not about the validity of the PHO Order or the benefits or drawbacks of vaccination. In fact, the Union did not put the PHO Order or policy into question. Rather, this was a grievance focused on whether the employer had just cause to terminate the Grievor in the context of the PHO Order.

The Grievance was dismissed. In rendering this decision, the Arbitrator noted, “There is no dispute that the Grievor advised she will not get vaccinated and has no intention of ever doing so. There is no exemption available to her under the Order. Simply put, there was no path forward for the Grievor for continued employment.” Further, taking into consideration “the existence of a government order with no expiry date” the employer “was not required to place the Grievor on a leave of absence of indefinite duration, where there was no foreseeable prospect of her being eligible to work at the time.” To conclude, the Arbitrator noted that the employer had “presented compelling operational reasons for its approach to the Grievor’s employment and that no lesser alternative was reasonably available.”

APRIL 4, 2022: Extendicare Lynde Creek Retirement Residence and UFCW, Local 175

COVID-19 Vaccine Policy Details:

The employer, a retirement home, implemented a mandatory COVID-19 Immunization Policy (the “Policy”) requiring all employees to be fully “immunized” within approximately six (6) weeks, failing which, unless able to present a valid exemption, the employees would be placed on an unpaid leave of absence and “may be subject to additional corrective action up and including termination of employment.”

Decision:

The parties asked the Arbitrator to: one, issue a bottom line award in the interest of receiving a timely decision and two, to consider the reasonableness and lawfulness of the Policy, in the context of the Ontario Government and other public health authorities recently reducing or eliminating various vaccination and other COVID-19 related requirements that had been in place for employees, contractors and visitors of retirement homes, long-term care homes, and other facilities and venues.

The Policy was upheld. In an expedited decision, the Arbitrator found that the Policy, “has been and remains a reasonable workplace rule, consistent with the Collective Agreement, the Occupational Health and Safety Act and the Retirement Homes Act […] 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.” Further, the Arbitrator indicated that the Policy’s definition of “fully immunized” requiring employees to receive all booster vaccinations recommended by health authorities, whether now or in the future, was also a reasonable workplace rule.

MARCH 22, 2022: The Toronto District School Board and CUPE, Local 4400

COVID-19 Vaccine Policy Details:

The employer, the Toronto District School Board (“TDSB”), one of the largest and most diverse school boards in Canada, implemented a mandatory COVID-19 Vaccination Policy and Procedure on September 14, 2021. The Policy required all employees with direct contact with staff or students at a TDSB workplace be fully vaccinated against COVID-19. Employees were required to provide evidence of this or establish a valid exemption by November 1, 2021, failing which, they would be placed on a non-disciplinary leave of absence without pay. Students and their families were not subject to the Policy.

Decision:

The Grievances were dismissed. The Arbitrator noted that the experts who were consulted in this matter were “largely agreed. Vaccination is the best way of keeping people and workplaces safe from infection.” As such, considering the nature of the workplace, the Arbitrator found that the TDSB had adopted appropriate and reasonable safeguards to best meet their obligations under the Occupational Health and Safety Act. Accordingly, the Arbitrator found that the Policy was an “entirely reasonable exercise of management rights” and did not violate Section 7 (Life, liberty and security of the person) of the Charter of Rights and Freedom, as alleged.

MARCH 17, 2022: UNIFOR Local 973 and Coca-Cola Canada Bottling Limited

COVID-19 Vaccine Policy Details:

The employer implemented a mandatory COVID-19 Vaccination Policy requiring all employees to be fully vaccinated within approximately sixty-seven (67) days, failing which, unless able to present a valid exemption, the employees would face discipline, including termination. The Policy was a national policy covering all union and non-union employees across the country.

Decision:

The Policy was upheld. The Arbitrator found that the Policy, “establishes a reasonable balance between an employee’s interest to privacy and bodily integrity, and the Employer’s interest in maintaining the health and safety of the workplace.”

In making this decision, the Arbitrator noted specifically: the Policy was clearly communicated, the consequences for not being vaccinated were progressive, and no employee had been subject to discipline for non-compliance. In terms of reasonable alternatives, the Arbitrator noted that due to the nature of work, none of the employees could work remotely and the majority worked in close contact with each other or members of the public. Further, the Arbitrator distinguished this matter from previous cases by indicating that the “situation is dynamic” and quoted Arbitrator Stout from a previous decision where he stated, “The one thing we have all learned about this pandemic is that the situation is fluid and continuing to evolve. What may have been unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.”

FEBRUARY 7, 2022: Chartwell Housing REIT (The Westmount, The Wynfield, The Woodhaven and The Waterford) v. Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer, a conglomerate of long-term care homes, updated its a COVID-19 Vaccine Policy to require employees to be fully vaccinated within approximately forty-seven (47) days, failing which, they would be placed on an unpaid administrative leave of absence, or “may have their employment terminated.”

Decision:

The Policy was struck down. The Arbitrator found that that changes to the previous Policy were too extreme. The older Policy allowed employees to remain unvaccinated but continue employment if they complied with the education, testing and PPE requirements. The new Policy no longer offered those alternatives and for the first time, threatened termination for unvaccinated workers. As such, the Arbitrator determined that these significant changes, made without any consultation with the Union, violated the collective agreement.

FEBRUARY 4, 2022: Power Workers’ Union v Elexicon Energy Inc.

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring employees to be fully vaccinated within approximately three (3) months, failing which, they would required to complete COVID-19 vaccine awareness training and placed on an unpaid leave of absence. Depending on the circumstances, the Policy states an employee may also be subject to disciplinary action up to and including termination of employment.

Interestingly, the Policy considers “full vaccination” status to be two doses but also requires additional vaccinations as recommended by governmental and/or healthcare authorities, for example, any third or “booster shots”. As such, the Policy actually required employees to receive three doses of the vaccination.

Decision:

The Policy was upheld – with caveats. The Arbitrator determined that the Policy would apply to all employees – except those who had been working exclusively from home and had no expectation or requirement of returning to the workplace in the near future, and for those who worked exclusively outdoors. The Policy, however, would apply to those who even partially worked inside.

JANUARY 31, 2022: Hydro One Inc. and Power Workers’ Union

COVID-19 Vaccine Policy Details:

The employer introduced a COVID-19 Vaccination Policy providing approximately one months’ notice that employees would be required to provide proof of vaccination status or submit to regular rapid antigen testing, at their own expense. The Union argued that the employer violated the Collective Agreement and the Grievors should not have lost wages for non-compliance and instead, should have been able to work from home, where possible.

Decision:

The Grievance was dismissed. First, the Arbitrator found that the Grievors were all given reasonable advance notice about the requirements of the Policy. Second, the Arbitrator indicated that it is “not necessary to provide remote work where a reasonable alternative has already been provided to those employees who refuse to disclose their vaccinated status.” Further, the Arbitrator confirmed that by enforcing these measures, the employer was complying with their obligations under the Occupational Health and Safety Act, to take reasonable precautions to protect the health and safety of their employees and the public that they serve. As such, the Arbitrator determined that the Policy is a “reasonable compromise that respects employee rights and balances the various important interests.”

JANUARY 4, 2022: Bunge Hamilton Canada v UFCW, Local 175 (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring employees to provide proof of full vaccination within approximately seventy-six (76) days. The Policy indicated that employees who were not fully vaccinated and/or did not intend to provide proof of fully vaccinated status would not be allowed on site and would be put on an unpaid leave of absence, pending a final determination on their employment status (up to and including termination of employment).

Decision:

The Policy was upheld. The Arbitrator found that the public health and safety risks associated with being unvaccinated were held to justify the placement of individuals on unpaid leave of absence for failing to provide proof of vaccination. Further, the employer’s close interaction with their sister job-site, which fell under a different jurisdiction, made the implementation of starkly different vaccination requirements to be impractical. Additionally, the Arbitrator was in favour of the Policy’s language which did not stipulate that employees would be immediately suspended or terminated as a result of non-compliance. Rather, the Arbitrator noted that the employer’s verbiage was open-ended, allowing for individual circumstances to be considered in the application of the Policy.

NOVEMBER 30, 2021: Canada Post Corporation and Canadian Union of Postal Workers

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring all employees to be fully vaccinated or partially vaccination failing which, unless unable to be vaccinated, the employees would be placed on an unpaid leave of absence. The Union was particularly concerned with the fact that the Policy failed to offer a reasonable alternative to vaccination, including specifically the option to undergo a self-administered rapid antigen test.

Decision:

This decision is particularly unique because two (2) expert witnesses were called, one by each party, to discuss the efficacy of vaccines versus rapid testing. In sum, their evidence established the following:

• Vaccination is safe and effective;
• There is “significantly lower” risk of becoming infected with COVID-19 if a person is vaccinated;
• Vaccination represents the most effective strategy to reduce transmission in a workplace such as Canada Post;
• The ideal frequency of testing is unknown and early infection might not be detected with rapid antigen testing; and
• Rapid antigen testing cannot be considered equivalent to vaccination as a means of reducing transmission.

Accordingly, the Arbitrator upheld the Policy, and indicated that it was “clear on the evidence that the most efficacious means of accomplishing the necessary health and safety objectives is through mandatory vaccination” and a “cease and desist order would result in an added risk to employees and the public, however, of severe illness.”

NOVEMBER 12, 2021: Ontario Power Generation v The Power Workers’ Union (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring employees to either be vaccinated or submit to rapid antigen testing on a twice per week basis, Unvaccinated employees were required to pay for their rapid antigen tests and were not paid for the time expended to administer these tests. Employees who refused to comply would be subject to further discipline, including an initial temporary leave of absence followed by a potential termination for cause.

Decision:

The Policy was upheld. The Arbitrator found that imposing disciplinary penalties for unvaccinated employees who refused to participate in the rapid antigen testing program was justified in the context of the global pandemic, as it was a minimally invasive compromise. However, after taking note of the employer’s large stature, the Arbitrator indicated that it was reasonable for them to cover the cost of such tests for unvaccinated employees (but not the time taken to administer them).

NOVEMBER 11, 2021: Electrical Safety Authority and Power Workers’ Union (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer updated their COVID-19 Vaccine Policy to require all employees to disclose their vaccination status and/or provide confirmation of full vaccination within a less than sixty (60) days. This Policy provided no testing alternative for those that were unvaccinated or chose not to disclose their vaccination status, and those who refused to comply would be subject to further discipline, up to and including termination.

Decision:

The Policy was struck down and remitted back to the employer for review and amendment. The Arbitrator indicated that the new Policy was unnecessarily stringent, when considering the employer’s unchanged circumstances at the time of updating the Policy. For instance, the majority of work being performed for the employer was effectively being done remotely, and that employees had a right to continue to work remotely pursuant to their collective agreement. In this regard, the employer had failed to demonstrate any new difficulties that had arose, hindering them from achieving their workplace health and safety obligations under their previous more flexible disclosure and testing policy. Lastly, the Arbitrator found that the discipline and discharge features of the new Policy were “premature” and “unjust” in the circumstances.

NOVEMBER 9, 2021: UFCW Canada Local 333 and Paragon Protection Ltd. (Read our full blog on this decision)

COVID-19 Vaccine Policy Details:

The employer implemented a COVID-19 Vaccine Policy requiring all employees to be fully vaccinated within approximately sixty (60) days. The Policy included an exemption: unvaccinated employees could be required to work at alternative sites, undergo additional testing, and/or be required to take an unpaid leave of absence.

Decision:

The Policy was upheld. The Arbitrator found that the Policy struck a balance between the rights of employees who do not wish to be vaccinated and creating/maintaining a safe workspace. This in turn allowed the employer to meet its obligations under section 25(2)(h) of the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker.”

Takeaways:

We could likely write an entire article on the key takeaways which we have gleaned from these decisions. However, above all else, it is important to remember that assessing the enforceability of a COVID-19 Vaccine Policy is highly fact-specific and contextual exercise. Policies are more likely to be upheld where there are reasonable alternatives to vaccination offered to employees who do not wish to comply, such as regular rapid antigen testing or remote work. Whereas more stringent policies are only likely to be upheld in workplaces where reasonable alternatives simply do not exist as a result of extenuating circumstances or due to the nature of work.  The challenges for employers continue, however, as antigen tests are currently unavailable and various levels of governments appear to be backtracking on previously rigid governmental requirement to be fully vaccinated.

The best way to ensure that your COVID-19 Vaccine Policy is compliant, is to contact one of our lawyers today to obtain personalized guidance and support. We are available to answer any questions you may have and conduct a review of your Policy to provide recommendations regarding whether you need to consider updating or amending your Policy in the circumstances.