Case In Point
Arbitrator Upholds Mandatory Vaccination Policy
Date: November 10, 2021
On November 9, 2021, Arbitrator Von Veh upheld the mandatory vaccination policy (Policy) implemented by a security company, finding the company acted reasonably in implementing the Policy and that it did not breach the collective agreement. The award provides some helpful guidance for employers that have implemented similar policies.
In United Food And Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd., Paragon Protection Ltd. (Company) employed approximately 4400 security guards represented by the Union, who perform work at about 450 client sites. Many of the Company’s clients had either implemented mandatory vaccination policies which required, among other things, that the Company’s security guards (in their role as client contractors) to be fully vaccinated, or advised the Company that they intended to introduce such mandatory vaccination policies in the near future.
The Company therefore implemented the Policy on September 3, 2021, which required its employees to be fully vaccinated by October 31, 2021 (subject to valid exemptions under the Human Rights Code). It sent out a communication to all employees prior to that date, notifying them of the Policy and instructing them that during the week of September 6, 2021, they would be provided with, and must complete, a vaccination status declaration form. The Policy stated, in part, that “Any Staff found to have violated or abused this Policy, and any individuals providing information pursuant to this Policy falsely or dishonestly, may be subject to disciplinary action in accordance with the Company’s existing disciplinary policies, up to and including termination for just cause.”
The Union argued, among other things, that the Policy breached the collective agreement, the Labour Relations Act, 1995 and the Ontario Human Rights Code. It also argued that the Policy was not in conformity with KVP principles. The KVP principles state that a rule unilaterally imposed by the employer must satisfy a number of requirements, including that the rule not be inconsistent with the collective agreement, not be unreasonable, and has been implemented with notice to the employees, among other things.
The Arbitrator noted that the 2015 collective agreement contained a provision (Article 24.05) that required an employee assigned to a client site to agree to receive a vaccination or inoculation “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,” or otherwise be reassigned.
The Arbitrator reviewed the Policy, the Ontario Human Rights Commission Policy statement on COVID-19 vaccine mandates and proof of vaccine certificates, Directive #6 from the Ontario Chief Medical Officer of Health, information regarding the risks of receiving the vaccine, relevant provisions of the Health Care Consent Act, the KVP principles and the nature of the Company’s operations, among other things. He made the following findings:
- the Policy was reasonable, enforceable, and compliant with both the Ontario Human Rights Code and Occupational Health and Safety Act
- the Policy adhered to Ontario Human Rights Commission guidance that mandatory vaccination policies are permissible as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated
- by introducing the Policy the Company had taken “every precaution reasonable in the circumstances for protection of its workers” as the Occupational Health and Safety Act mandates
- the Policy struck a reasonable balance between the rights of employees not to get vaccinated, their rights under the Code, and the Company’s obligation to provide a safe workplace for staff
- receiving a vaccine is an employee’s personal choice, but “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations”
- the substantive provision of Article 24.05 had been incorporated into the Policy and the Policy “promulgated ‘reasonable rules and regulations to be observed by the employees’” per the Company’s Management Rights clause (Article 4.01(b))
- the Health Care Consent Act does not apply in the present circumstances, and
- the Company acted reasonably (per the KVP principles) in unilaterally introducing the Policy.
The Arbitrator concluded that the Policy did not breach the collective agreement and dismissed the grievance.
The vaccination language in the applicable collective agreement in this case may be distinguishable from other collective agreements. However, this is the first decision of which we are aware that upholds a mandatory vaccination policy as reasonable, enforceable, and compliant with the Human Rights Code and Occupational Health and Safety Act. As such, it provides some helpful insight on how an arbitrator may view the issues raised by COVID-19 and vaccination in the workplace.
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