Introduction

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 to address the dispute.

Vaccine Mandates: Guidance on How Arbitrators and Courts May Rule

Latest Developments

A recent court of appeal case, National Organized Workers Union v. Sinai Health System, 2022 ONCA 802 (CanLII) (“Sinai”) has clarified (regarding unionized workplaces) that the correct path for challenges to an employer’s mandatory vaccination policies (including interloctury injunctions as in this case) are through the labour relations regime, and not through the courts. See Sinai at para. 15. The court found that the irreparable harm claimed by the Appellant only applied to some workers opposed to vaccination but compelled to be vaccinated. On the other hand, those workers who resisted being vaccinated and took a leave of absence, could have their interests addressed at a later date: see Sinai para 38. Moreover, according to the court, the case law in this area makes clear that there are tools available to the Arbitrator to remedy the union’s grievance including “reinstatement of employment with seniority and compensation for lost wages”. See Sinai para. 22: Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 45-51. If you come across a situation where parties are unsure the appropriate process to follow…whether it be workplace investigation, mediation or arbitration please contact Neil Hain Dispute Resolution, a business with a long and established track record of being a leader in and offering these services.

A decision that cuts against the grain of current arbitration awards is FCA Canada Inc. v Unifor, Locals 195, 444, 1285, 2022, CanLII 52913 (ON LA) (“FCA Canada”). In this case, Arbitrator Marilyn A. Nairn determined the mandatory vaccination policy of FCA Canada Inc. (a wholly-owned subsidiary of Stellantis N.V. — the “Employer”) was no longer reasonable. The decision focused on two central factors, see: FCA Canada at para. 107:

• the vaccine mandate policy requires two doses, which is no longer reasonable due to, “evidence supporting the waning efficacy of a two shot vaccination status”;
• a failure (under Omicron conditions) to establish “any notable difference in the degree of risk of transmission of the virus as between the vaccinated (as defined in the Policy) and the unvaccinated”.

To determine the reasonableness of the vaccine policy, Arbitrator Nairn applied the KVP principles, see: Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd., 1965 CanLII 1009 (ON LA), 1965 CarswellOnt 618, May 30, 1965 (Wren, Robinson, Hicks) at para. 33:

1. [The rule] must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
6. Such rule should have been consistently enforced by the company from the time it was introduced.

It was decided the dispute turned on the second factor: reasonableness of the vaccine policy. Nairn determined when first introduced, the vaccine policy was reasonable under conditions prevalent with the original Covid-19 virus strains. However, as the virus mutated to the highly transmittable Omicron variant, it became apparent there was negligible difference in the degree of risk of transmission between unvaccinated and vaccinated, and the vaccine policy was no longer reasonable, see: FCA Canada at para. 107.

Although outside the current body of decisions, FCA Canada is noteworthy, especially as government mandates continue to be lifted. If Human Resources require further discussion or consultation on any Covid-19 policy issues in relation to workplace investigation, mediation, or arbitration, feel free to contact Neil Hain Dispute Resolution.

Human Resources can contrast FCA Canada to the finding in Richmond (City) v International Association of Professional Firefighters, Local 1286, 2022 CanLII 707 (BC LA) (“Richmond”). Arbitrator Randall J. Noonan declined an application by three grieving unions (the “Unions”) to stay a mandatory vaccination policy by the City of Richmond (the “Employer”).

In short, the Unions argued the mandatory vaccination policy was unreasonable and overreaching while there were less intrusive means to prevent the spread of Covid-19 available. The Unions requested to temporarily halt the policy or have an exemption for specific employees. Arbitrator Randall J. Noonan found the health and safety risk to other employees and the public prevailed over the non-complying employees’ privacy and bodily integrity rights.

The legal tests from RJR MacDonald v. Canada (Attorney General), [1994] S.C.R. 311 (“RJR MacDonald”) to set out what must be satisfied for a court to issue an injunction were applied:

1. There must be a serious case to be tried;
2. The applicant would suffer irreparable harm if the application were refused; and
3. The applicant would suffer greater harm if the application were refused than would the respondent if it were granted pending a decision on the merits (known as the balance of convenience test).

The Union’s grieved that the Employer’s policy would cause irreparable harm to its members and later remedies could not address the consequences, which include:

• Financial stress: inability to pay mortgages, support their immediate family’s needs, and other dependents requiring expensive medical care;
• Mental stress: exacerbating pre-existing medical conditions (such as PTSD) and marital harm that flows from loss of income;
• Intrusions of privacy through having to disclose personal medical information;
• Intrusions of bodily integrity in undergoing a vaccination the employees do not wish to have.

The Unions proposed using testing as an acceptable alternative, and claimed masking, enhanced cleaning, and ventilation systems already adequately protected employees as the existing low rate of transmission demonstrated.

The Employer argued the “harm” suffered was not irreparable as per the RJR MacDonald tests. And should a stay on the policy be granted, whatever harm was suffered by the non-compliant employees was far outweighed by the risk of potential harm, and even death, if transmission occurred in the workplace .

In concluding Richmond, Arbitrator Noonan agreed with the Union that disclosure of private medical information of its members and vaccination against members’ wishes would occur. Noonan agreed the losses flowing from loss of privacy and bodily autonomy could not be compensated against by later monetary awards. Contrary to these findings, Noonan decided it was not necessary to determine the other harms put forward by the Union as being “irreparable” under the RJR MacDonald tests. It was decided, “this case will ultimately be determined on the balance of convenience test”, see: Richmond at para. 87.

Noonan found the evidence before him showed vaccinations were effective at preventing individuals contracting Covid-19 and unvaccinated individuals are more likely to contract Covid-19, be hospitalized, or succumb to the virus than those who are vaccinated. He noted not enough evidence had been supplied to show the vaccine policy was overreaching or the alternatives put forward by the Union would be successful in preventing the spread of Covid-19.

When dismissing the application for an interim stay on the vaccine policy, Noonan stated at Richmond, para. 101, “I find that the health and safety risks to employees and to members of the public with whom they interact outweigh the intrusion into privacy and bodily integrity rights of those members of the Unions who choose not to comply with the Policy.”

Due to the reasons above, the 39 affected employees were also not granted exemptions to the mandatory vaccination policy.

Please feel free to contact Neil Hain Dispute Resolution for any workplace investigation, mediation, or arbitration questions in regard to Covid-19 policy matters.

A further arbitration award in favour of a Covid-19 policy to mandate vaccinations for an entire workforce is United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd (November 9, 2021) (“Paragon”). 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 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.

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:

• suffers from a severe allergy to a vaccine or an ingredient in it;
• has a medical condition or disease requiring medicine that adversely reacts with an ingredient in the vaccine; or
• can establish an enduring religious belief, one that belongs to a recognized religious group, who objects to vaccines on religious principles.

The aforementioned exemptions are limited and does not mean a worker may refuse to comply with their employer’s vaccine policy if they do not fall under a protected ground and simply on the basis of personal preference.

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.

Future Considerations

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.