No “one-size-fits-all” solution for workplace vaccination mandates: experts


By Paola Loriggio

THE CANADIAN PRESS

TORONTO – A year after the first COVID-19 vaccines arrived in Canada, employers and workers in the country’s most populous province have a clearer idea of ​​when and what type of vaccination warrants can be applied on the workplace, legal experts have said following recent rulings on the issue.

However, Ontarians shouldn’t expect a blanket, black-and-white response to whether such policies, which in some cases involve the termination of non-compliant staff, can still be enforced, experts said. .

A series of recent rulings has shown that labor arbitrators take into account the specifics of each workplace and policy when determining whether mandates can be imposed in a unionized setting, said Michael Cleveland, a lawyer at Miller Thomson.

“There will be no one-size-fits-all solution,” he said in a recent interview.

“Ultimately what is reasonable depends on the specific circumstances of the workplace and also things like the surrounding circumstances, (like) whether there really is an expanding community spread in the environment.”

In a November ruling, an arbitrator upheld a policy implemented by a security company whose staff worked at about 450 sites across the province, most of which had their own vaccination requirements.

The policy allowed employees to request accommodation for medical or creed reasons, but indicated that breaches of mandate could result in disciplinary action, including termination for cause, according to the ruling.

Arbitrator, Fred von Veh, found the policy to be both reasonable and enforceable, and struck a balance between the rights of employees seeking immunization and the rights of others, including customers, to a safe workplace.

He noted that even before the pandemic, the union’s collective agreement included a clause stating that employees assigned to locations where certain vaccinations were required by law or by the customer should either be vaccinated or be reassigned to another location.

Another ruling this month concluded that a vaccination warrant imposed on employees of an electrical safety agency was unreasonable and unenforceable because, under the circumstances, a less intrusive alternative could be used.

In this case, much of the work was done remotely, a majority of employees were already vaccinated and there had been few cases of infection among the staff, the arbitrator noted. In addition, the company’s previous policy on voluntary vaccine disclosure and testing had been effective, the ruling said.

“To discipline or fire an employee for not having been vaccinated, when it is not a hiring requirement and when there is a reasonable alternative, is unfair,” wrote arbitrator John Stout, adding that the context is important for evaluating such policies.

He noted, however, that such a mandate could become reasonable in the future if circumstances change.

“The only thing we have all learned about this pandemic is that the situation is fluid and continues to evolve,” he said.

Rarely do collective agreements include language on immunization outside of healthcare facilities, so in most cases labor arbitrators will assess whether the details of the policy constitute a reasonable exercise of managerial rights, Cleveland said. .

As more and more cases pass through the labor arbitration system over the next few months, it is likely that a ‘typology of cases’ will emerge regarding what is reasonable in a variety of settings. unionized work, he said.

“There was a real lack of case law on how courts and arbitrators would approach these COVID-19 vaccination policies. We are moving away from the old jurisprudence regarding vaccination policies against influenza epidemics in hospitals, ”he said. “It was a bit of a relief to finally have some advice from some of the officials.”

Some employees or unions have turned to Ontario courts to seek injunctions that would prevent the implementation of vaccination mandates until grievances are resolved by arbitration, but on several occasions the courts have refused to ‘intervene, asserting that such cases should be dealt with by the labor system.

Meanwhile, in non-union workplaces, employers in Ontario can essentially fire anyone for any reason, as long as it is not discriminatory under the Human Rights Code of Ontario. Ontario, said Toronto lawyer Tanya Walker.

The challenges with vaccination mandates will likely depend on whether appropriate accommodation has been offered for medical reasons or religious belief, and whether the dismissal is considered to be with or without cause, she said. , noting that dismissal without cause is more costly for employers.

“If someone has a clear and honest refusal, is not dishonest, and the vaccination policy was not actually in place when the person was hired, it might be difficult to justify dismissal for cause. “she said in a recent interview. .

“So what I’ve seen is employers just put people on unpaid leave and let it happen that way. “

The Ontario Human Rights Commission has issued guidelines for vaccination warrants, saying the requirement for proof of vaccination is generally allowed as long as there are accommodations for those who cannot be vaccinated for reasons protected by the human rights code, such as religion or disability.

He notes, however, that personal preferences do not respect the accommodation threshold provided for by the code.

Walker said she had not seen any litigation so far involving non-union workplaces, perhaps because this process takes longer than arbitration.

“The law may be a bit more settled in a few months, but it’s quite new,” she said. “It’s going to take a little while.”

This report by The Canadian Press was first published on January 2, 2022.

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