In recent months, we have continued to see arbitration decisions addressing unions’ challenges to mandatory vaccination policies. Employers must consider how these decisions impact their existing or contemplated vaccination policies in order to ensure that they are compliant with the evolving jurisprudence.

While many employees and unions have accepted mandatory vaccination policies as a practical and reasonable method of controlling the spread of COVID-19 in the workplace moving forward, challenges to employer policies continue to be brought forward. Recent decisions provide further guidance as to the best practices and considerations employers should consider when revising or drafting a mandatory vaccination policy for their workplace.

The jurisprudence demonstrates that while there is no ‘one size fits all’ approach to drafting an enforceable vaccination policy, most such policies have been upheld at arbitration. The following are brief summaries of 2022 arbitration decisions addressing vaccination policies.

In Bunge Hamilton Canada and UFCW, the arbitrator upheld the employer’s mandatory vaccination policy. The arbitrator found that the employer’s requirement for employees to disclose vaccination status was reasonable, finding that any violation of privacy rights was ‘considerably’ outweighed by the minimal intrusion on such rights and the public benefit of a vaccination policy. The policy indicated that employees could be terminated for non-compliance, but did not mandate termination and allowed for such decisions to be made on a case-by-case basis.

In MLSE and Teamsters (Local 847), the arbitrator effectively held that a mandatory vaccination policy was reasonable when an individual filed a grievance after being placed on unpaid leave after refusing to disclose their vaccination status. The arbitrator stated that employers could not enforce vaccination policies without requiring employees to disclose their vaccination status, and that it was particularly important for employers to have mandatory vaccination policies in workplaces where employees work in close proximity to one another.

In City of Richmond and IAPF (Local 1286 and CUPE, Locals 718 and 394), Arbitrator Noonan found that the potential harm of having unvaccinated employees in the workplace was greater than the potential harm of those same employees being denied work due to their failure to comply with the employer’s vaccination policy. The arbitrator declined to issue a stay of the employer’s policy as a result.

In PNR Railworks and LIUNA (Local 183), in a preliminary decision, the arbitrator determined that employees had not been ‘disciplined’ when the employer refused to schedule them due to their being unvaccinated. Instead, the arbitrator found that the unvaccinated workers had not fulfilled a condition of employment and therefore could not be scheduled due to their own actions.

In Hydro One and PWU, the arbitrator held that it was reasonable for Hydro One to suspend without pay workers who refused to comply with employer’s requirement that employees either receive the vaccine or undergo regular testing (a ‘vaccinate or test’ policy).

In Elexicon Energy and PWU, the arbitrator found that the employer’s mandatory vaccination policy was reasonable except to the extent that it applied to employees working exclusively from home or exclusively outdoors.

In Chartwell Housing Reit and HOPE Union (Local 2220), the arbitrator found that the employer’s vaccination policy was unreasonable to the extent that it mandated automatic termination for non-compliance with the policy. However, the arbitrator concluded by noting that:

‘…it is important to state that this decision should not be taken by those employees who choose not to get fully vaccinated as indicating that the Employer would never be able to terminate their employment for non-compliance with the policy in question, or indeed any reasonable policy. It is only the automatic application of this policy as it respects discharge that has been found to be unreasonable… No employer has to leave a non-compliant employee on a leave of absence indefinitely. At some point, and subject to the Employer warning employees of the possibility of termination, and having considered other factors, it will likely have just cause to terminate the employment of such an employee.’

COVID-19 mandatory vaccination policies should, among other things:

• Set out specific timelines for compliance with the policy, with reasonable advance notice (i.e. when the policy’s vaccination requirements take effect).
• Allow for valid human right exemptions to the vaccination requirements, and confirm the accommodation efforts to be undertaken by the employer where necessary.
• Clearly set out the consequences for non-compliance with the policy (which, depending on the nature of the workplace, may include not just placing employees on an unpaid leave of absence but also the possibility of discipline up to and including termination, as long as termination is not an automatic consequence of non-compliance).
• Confirm the measures that will be taken to protect employee privacy (including information as to employees’ vaccination status).

The state of COVID-19 in Canada (and associated government legislation) continues to rapidly evolve. Employers should continue to review their policies and practices, on an ongoing basis, to ensure they remain in compliance with the law and are consistent with the most up-to-date best practices.

Please note that in the light of recent legislative changes, many Ontario employers are now dropping mandatory vaccination policies.