Two Ontario Labour Arbitrators recently heard grievances from unions claiming the Employers’ mandatory COVID-19 vaccination policies were a violation of the respective collective agreements. In one case, the grievance was dismissed. In the other, the grievance was upheld. While these decisions come out of Ontario, they provide insight into how Labour Arbitrators are considering the legitimacy of mandatory vaccination policies.

UFCW Local 333 v Paragon, 9 November 2021

The Company employed security guards who were deployed to a number of locations, including to customers that required all persons on site to be vaccinated.  It introduced a vaccine mandate that required all employees to demonstrate proof of vaccination unless exempted on human rights grounds.

The Union brought a grievance claiming that the Company’s vaccination policy was contrary to the provisions of the collective agreement and violated Ontario’s human rights legislation. The Company relied on a management rights clause in the collective agreement which gave the Company the exclusive right to make, enforce or alter reasonable rules to be observed by the employees.

The Arbitrator dismissed the Union’s grievance, holding that the Company has an obligation to protect the health and safety of its employees. The Arbitrator concluded that personal subjective perceptions about the vaccine did not override and displace available scientific considerations.

PWU v ESA, 11 November 2021

In a decision rendered only two days later, another arbitrator released a decision upholding the union’s grievance claiming that a mandatory vaccine policy was unreasonable.

In his decision, Arbitrator Stout wrote that an employer cannot unilaterally introduce an unreasonable rule or policy. He held that there was nothing in the parties’ collective agreement that required vaccinations as a condition of employment. The arbitrator concluded that the policy was unreasonable because the employees in the bargaining unit could work remotely and there was no significant risk of an outbreak at the worksite.  He further determined that less intrusive alternatives were adequate to address any risks arising.

Key Takeaways:

The two Ontario decisions suggest that employers who wish to introduce mandatory vaccine policies should consider:

• The specific language of any management rights clause in their collective agreement;
• The kind of work the employees are carrying out and the level of risk of COVID infection or transmission inherent in the workplace;
• Whether employees will be deployed to worksites that have vaccine mandates; and
• Whether there are other less intrusive policies that could adequately protect the health of the employees and the business’ customers.

We continue to await decisions on these issues from BC arbitrators.

Author: Elizabeth Lotfali