Arbitrator upholds mandatory COVID-19 vaccination policy

by Rhonda B. Levy, Barry Kuretzky and George Vassos of Littler

On November 9, 2021, in United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. (Paragon), Arbitrator Von Veh in Ontario dismissed a union’s policy grievance and upheld a mandatory COVID-19 vaccination policy on the grounds that it was reasonable and did not breach the collective agreement (CA).  Paragon is the first award of which we are aware that does so and provides valuable information to employers that have implemented mandatory COVID-19 vaccination policies or plan to do so. 

Background

The defendant employer is a security company that employs 4,400 unionized security guards who work at 450 client sites in Ontario.  On September 3, 2021, the employer issued a notice to its employees advising them: (i) of the implementation of a new policy ordering them to be fully vaccinated against COVID-19 by October 31, 2021 (Policy); (ii) that during the week of September 6th they would be receiving a declaration form that was to be completed confirming their vaccination status; and (iii) there would be serious consequences for those who failed to comply with the Policy’s requirements. 

On September 13, 2021, the union filed a Policy Grievance alleging violations of two articles of the CA, Article 4 (Management Rights) and Article 24 (Health and Safety), and Ontario’s Human Rights Code (HRC).  Article 24.05 of the CA provides, among other things, that, “If an employee is assigned to a site where specific vaccination and or inoculation is required by law or where the conditions of contractors having access to the site stipulates specific vaccination and inoculation requirement, the employee must agree to receive such vaccination or inoculation.”   

On September 20, 2021, the employer replied to the Policy Grievance noting:

• The majority of the employer’s clients implemented their own mandatory vaccination policies for all staff on site.  This included all contract employees, including site security staff.  The employer’s clients that have not yet issued such policies have indicated that such policies are forthcoming; and
• Many employees raised concerns about working with other site security members who have not been vaccinated. 

The employer argued that it had to implement the Policy:

• “As an operational necessity” to properly service its clients; and
• To maintain a safe and healthy work environment for its employees, its clients and their staff, and the public.

The employer denied that it breached the HRC because it developed an exemption policy and created a form to accommodate exemption requests on the basis of creed/religion and health. 

Findings of the Arbitrator

Based on the following findings, Arbitrator Von Veh dismissed the union’s Policy Grievance and upheld the employer’s Policy:

• The Policy was reasonable, enforceable, and compliant with Ontario’s HRC and Occupational Health and Safety Act (OHSA);
• The employer’s COVID-19 Vaccination Exemption Policy was reasonable, enforceable, and compliant with the HRC;
• The Policy struck a balance in order to respect the rights of employees who have not been vaccinated or do not wish to be, while respecting a safe workplace for staff, the employer’s clients, and members of the public with whom the employer’s security guards interact;
• By introducing the Policy, the employer took “every precaution reasonable in the circumstances” to protect the health and safety of its employees, as it was obligated to do pursuant to s. 25(2)(h) of the OHSA;
• While receiving the COVID-19 vaccination is voluntary, “There is a wealth of scientific information available on the pandemic and COVID-19” and “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.”  Consistent with the Ontario Human Rights Commission’s policy statement on COVID-19 vaccine mandates and proof of vaccine certificates (discussed in detail here), employees who choose not to be vaccinated based on personal subjective preferences do not have the right to accommodation under the HRC;
• The substantive and mandatory principles of Article 24.05 of the CA (“…the employee must agree to receive such vaccinations or inoculations”), which were agreed to by the parties five years prior to the COVID-19 pandemic, were correctly incorporated into the Policy; 
• The provisions of the Health Care Consent Act, 1996, were not applicable to the matters being adjudicated;
• In unilaterally introducing the Policy, the employer promulgated “reasonable rules and regulations to be observed by the employees” in accordance with the principles set out in KVP Co. v. Lumber and Sawmill Workers’ Union 16 LAC 73, pursuant to the Management Rights clause in the CA (Article 4.01(b)); 
• A 2018 Arbitration Award relied on by the union dealt with an annual influenza vaccine and the wearing of masks, circumstances distinct from the COVID-19 pandemic, which involves the infection of more people and causes more fatalities; and
• The union did not establish a violation of Article 4 (Management Rights) and Article 24 (Health and Safety) of the CA as alleged in its Policy Grievance. 

Bottom Line for Employers

Arbitrator Von Veh considered the specific language of the CA, which may differ from the language of other CAs.  We would not expect most CAs to have similar language to the vaccination language in Article 24.05 of the CA in this case.  In fact, Arbitrator Von Veh observed in his findings:  “I find it remarkable that such perceptive vaccination and inoculation provisions were agreed to by the Parties at least five (5) years before the arrival of the pandemic which is currently surrounding the world.”

Despite the uniqueness of the language in the CA, the Paragon award, although non-binding, may provide an indication of the direction arbitrators will be taking on the topic of mandatory COVID-19 vaccination policies in unionized workplaces.  Paragon may also influence judicial decisions that will inevitably be rendered on this topic in the non-unionized context, and suggests that mandatory COVID-19 vaccination policies that comply with the HRC will be considered reasonable and enforceable, and viewed as satisfying an employer’s obligation under the OHSA to take every reasonable precaution to protect the health and safety of its employees.

On November 11, 2021, Arbitrator Stout rendered an award in Electrical Safety Authority and Power Workers’ Union (Electrical Safety Authority), in which, in response to a grievance filed by the union, he determined that the employer’s mandatory vaccination policy was unreasonable.  When he did so, Arbitrator Stout was in possession of the Paragon award and emphasized that it was reasonably decided but arose in a different context and was distinguishable.  We will soon be publishing an Insight analyzing the Electrical Authority award.  In addition, we will follow any other awards/decisions that consider the reasonableness and enforceability of mandatory COVID-19 vaccination policies in both unionized and non-unionized contexts and provide updates as they arise.