No 'one-size-fits-all' solution when it comes to vaccine mandates at work: experts

·5 min read

TORONTO — A year after COVID-19 vaccines first arrived in Canada, employers and workers in the country's most populous province are getting a clearer picture of when and what kind of immunization mandates can be enforced in the workplace, legal experts said following recent rulings on the issue.

However, Ontarians shouldn't expect a black-and-white, across-the-board answer on whether such policies – which in some cases involve firing non-compliant staff – can always be imposed, the experts said.

A series of recent decisions has shown labour arbitrators are considering the specifics of each workplace and policy in determining whether the mandates can be imposed in a unionized setting, said Michael Cleveland, a lawyer with the firm Miller Thomson.

"There's not going to be a 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) is there really expanding community spread in the environment."

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

The policy allowed employees to request accommodation for medical reasons or creed, but indicated that breaches of the mandate could lead to discipline, including termination for just cause, according to the ruling.

The arbitrator, Fred von Veh, found the policy was both reasonable and enforceable, and struck a balance between the rights of employees seeking not to be vaccinated and the rights of others, including clients, to a safe workplace.

He noted that even before the pandemic, the union's collective agreement included a clause that stated employees assigned to locations where certain inoculations were required by law or by the client would have to get those shots or be reassigned to another location.

Another decision issued that month concluded that a vaccine mandate imposed on employees at an electrical safety agency was unreasonable and unenforceable because, under the circumstances, a less intrusive alternative could be used.

In that case, much of the work was being done remotely, a majority of employees were already vaccinated, and there had been few cases of infection among staff, the arbitrator noted. As well, the company's previous policy of voluntary immunization disclosure and testing had been effective, the decision said.

"Disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, is unjust," arbitrator John Stout wrote, adding context is important in assessing such policies.

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

"The one thing we have all learned about this pandemic is that the situation is fluid and continuing to evolve," he said.

It's rare that collective agreements will include language on vaccination outside of health-care settings, so in most cases, labour arbitrators will be weighing whether the specifics of the policy are a reasonable exercise of management rights, said Cleveland.

As more cases make their way through the labour arbitration system over the coming months, it's likely a "typology of cases" will emerge regarding what's reasonable in a variety of unionized workplaces, he said.

"There was a real lack of case law on how courts and adjudicators would approach these COVID-19 vaccination policies. We were going off of older jurisprudence dealing with vaccination policies for flu outbreaks in hospitals," he said. "It was a bit of a relief to finally get a bit of guidance from some adjudicators."

Some employees or unions have turned to Ontario courts seeking injunctions that would prevent vaccine mandates from being implemented until grievances are resolved through arbitration, but on several occasions, the courts have refused to intervene, saying such cases should be handled by the labour system.

Meanwhile, in non-union workplaces, employers in Ontario are essentially able to fire anyone for any reason, provided it's not discriminatory under the Ontario Human Rights Code, said Tanya Walker, a lawyer in Toronto.

Challenges to vaccine mandates will likely come down to whether appropriate accommodation was offered for medical reasons or religious belief, and to whether the termination is considered to be with or without cause, she said, noting that termination without cause is costlier for employers.

"If someone has a clear and honest refusal, they're not being dishonest, and the vaccination policy wasn't actually in place when the person was hired, it might be difficult to justify termination with cause," she said in a recent interview.

"So what I've seen is that employers are just putting people on unpaid leave and letting that play out that way."

The Ontario Human Rights Commission has issued guidance regarding vaccine mandates, saying that requiring proof of vaccination is generally permissible so long as there are accommodations for those who can't be immunized for reasons protected under the human rights code, such as religion or disability.

It notes, however, that personal preference does not meet the threshold for accommodation under the code.

Walker said she hasn't seen any cases involving non-union workplaces come to litigation so far, possibly because that process takes longer than arbitration.

"The law may be a little bit more settled a few months from now, but it is quite new," she said. "It's going to take a little bit of time."

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

Paola Loriggio, The Canadian Press

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