Covid-19 has created a difficult balancing act for employers to ensure workplace safety while upholding workers’ human rights and privacy. In this fast changing environment, it is essential for Human Resources to keep well informed about past and present vaccine policy rulings to anticipate where future findings may lead.
When handling employee requests for vaccination exemptions, modified remote work requests, or other accommodations, Human Resources would be prudent to engage experts in the field. If these requests are not responded to in a timey fashion or declined, an aggrieved employee may bring claims of discrimination, bullying and harassment, or constructive dismissal.
If an employer is already in a claim situation, it is important to have the services of a professional and impartial workplace investigator, mediator or arbitrator address the dispute.
Vaccine Mandates: Guidance on How Arbitrators and Courts May Rule
A recent arbitration award found in favour of an employer’s policy to mandate Covid-19 vaccination for all their workforce: see United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd (November 9, 2021). The defendant was a security company who employed approximately 4400 security guards at 450 client sites. The Union’s grievance alleged breaches of the collective agreement and the Ontario Human Rights Code.
The arbitration board found that the vaccination policy was in accord with the collective agreement (Article 24.05), which outlined that an employee working on a client site must agree to receive a vaccination if required by law or as a condition of access to that site. The company had made clear the majority of its clients were implementing their own vaccination policies. Those clients who had not yet implemented vaccination policies were preparing to follow suit. This left the company little option, but to introduce their own mandatory vaccination policy.
Under the Occupational Health and Safety Act, RSO 1990, c O.1 (“OHSA”) there is a duty to protect. In Paragon, the arbitrator stated that the company had satisfied its obligations and responsibility as it did, “take every precaution reasonable in the circumstances for the protection of a worker”: see OHSA s. 25(2)(h). The arbitrator also found the vaccination and exemption policies had taken “every precaution reasonable” to satisfy their obligations and responsibilities.
The year before the Covid-19 pandemic began, another arbitrator ruled that an employer’s vaccine or mask mandate to combat seasonal influenza was not reasonable: see St. Michael’s Hospital v. Ontario Nurses’ Association, 2018 CanLII 82519 (ON LA) (St Michael’s). However, in Paragon that arbitrator deemed the case in St. Michael’s was materially different when put in a Covid-19 context. The arbitrator reasoned this was because the Covid-19 case fatality rate and infection rate remains higher than the seasonal influenza: relying in part on Public Health Ontario 2021 publication Key features of influenza, SARS-CoV-2 and Other Common Respiratory Viruses (Table 1). The arbitrator in Paragon found the company’s vaccine policy was consistent with the KVP reasonableness test (see KVP (1965) 16 LAC 73), specifically in regard to the collective agreement (Article 24.05) where vaccination and/or inoculation is required by law or becomes a condition of having access to a worksite.
The arbitrator in Paragon laid out that this provision had been integrated into the Covid-19 vaccination policy and the policy was made widely known and fell within the Management Rights clause of the collective agreement.
Even more recently, a Superior Court of Justice in Ontario denied a worker’s challenge to their employer’s mandatory vaccination policy. The court refused to stay terminations resulting from workers non-compliance with said policy: see Blake v. University Health Network, 2021 ONSC 7139 CanLII.
Although these cases appear to support mandatory Covid-19 vaccination policies, in certain contexts, HR personnel should be mindful about authorizing blanket terminations for non-compliance. The BC Human Rights Code may afford worker protection in rare cases where the refusal to comply is legitimate and falls under a protected ground. Such examples may include a person who:
Human Resources personnel when assessing the legitimacy of a worker’s refusal to follow the employer’s Covid-19 mandatory vaccination policy will need to balance an employer’s right to ensure the safety of its operations with the worker’s rights of privacy when seeking out information about a worker’s medically justified work limitations: see for example, West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22. This balancing act will likely continue as HR staff consider workers’ exemption requests from the employer’s mandatory vaccination policies.
Should a Covid-19 work exemption, accommodation, or any other workplace issue become the focus of a complaint, claim or dispute, it is crucial to engage, at the earliest opportunity the services of a neutral third party either in the role of workplace investigator, mediator or arbitrator.
Contact Neil Hain Dispute Resolution for workplace investigation, mediation or arbitration services.