On October 6, 2021, the Government of Canada announced a policy requiring all federal public servants in the Core Public Administration and all employees in the air, rail and marine transportation industry to be fully vaccinated against COVID-19.
Many private sector employers across Canada have followed suit and introduced similar vaccination policies, with consequences for non- compliance ranging from having to undergo regular rapid antigen testing to termination.
Given the personal, medical and privacy issues at play, it is not surprising that some employees and unions have taken the issue of mandatory vaccination to court and arbitration.
So far, employers have enjoyed success at the court level, with courts refusing to grant an injunction to impede the implementation of a mandatory vaccination policy. However, arbitrations on the merits of vaccination policies have produced a mixed bag of results; certain policies have been upheld, while others have been found to be unreasonable.
Interlocutory injunction decisions
In a trio of decisions,1 the Ontario Superior Court of Justice and Federal Court refused to enjoin employers from instituting mandatory vaccination policies by which employees must either be fully vaccinated or be placed on unpaid leave.
An interlocutory injunction is an order of the court that commands or prohibits a certain action until such time as the issue(s) at stake can be fully litigated. In order for a court to grant an interlocutory injunction, a threefold test must be met:
- There must be a serious issue to be tried
- If the injunction is not granted, the party seeking the interlocutory injunction must suffer irreparable harm (i.e., harm that cannot be compensated by damages)
- The balance of convenience must favour the party seeking the injunction
In all three recent court decisions, the applicants failed the second stage of the test because the vaccination policies would not cause irreparable harm to employees. Specifically, loss of employment, or unpaid leave, could be compensated by a payment of damages, no different than in any other case in which monetary damages is a potential remedy.
Importantly, despite the repeated argument from the unions and employees that a mandatory vaccination policy forces an employee to be vaccinated, the courts unequivocally disagreed, finding that a mandatory policy simply requires an employee to choose between two options: being vaccinated and being put on unpaid leave. An employee may not like either option, but the first option is not required and the second does not result in irreparable harm.
Additionally, in the two Superior Court decisions, the court refused to issue an interlocutory injunction against a unionized employer because remedies were available through grievance arbitration.
Arbitration decisions
While the courts have so far been unanimous in injunction decisions, arbitrators have taken varying approaches. Generally speaking, a vaccination-or-test policy has been found to be permissible, whereas the reasonableness of a vaccination-or- discipline policy will depend on the situation.
In UFCW, Local 333 v Paragon Protection Ltd,2 Arbitrator von Veh upheld a mandatory vaccination policy for a security company. The arbitrator found the policy was reasonable and had an adequate exemption clause which allowed an employee with a valid medical or religious exemption to be accommodated. Surprisingly ahead of its time, the collective agreement (entered into long before the COVID-19 pandemic) had a clause that required all employees to be vaccinated if assigned to a site where vaccination was required.
By contrast, in Electrical Safety Authority v Power Workers’ Union,3 Arbitrator Stout found the employer’s vaccination policy was unreasonable to the extent that an employee may be disciplined or discharged for failing to get fully vaccinated. The employer moved from a vaccination-or-test policy to a vaccination-or-discipline policy. The arbitrator found the employer had not shown there was a specific problem with COVID-19 in the workplace that could not be adequately addressed with the previous vaccination-or-test policy. As such, the vaccination-or-discipline policy was unreasonable. However, the arbitrator did acknowledge that in a workplace setting where the risk of COVID-19 is high and there is a vulnerable population, a mandatory vaccination policy may be reasonable.
In Ontario Power Generation v Power Workers’ Union,4 Arbitrator Murray found it was reasonable for an employer to institute a policy placing any employee on unpaid leave if they refused to be vaccinated or tested on a regular basis. The arbitrator also held that the employer must pay for rapid antigen tests for any unvaccinated employees, but need not compensate employees for time spent outside normal working hours self-administering the test.
Takeaways for employers
The battle over mandatory vaccination in the workplace is just beginning. While some employers, employees and unions are fully in favour of a vaccination-or-discipline approach, others prefer vaccination-or-test, and still others favour no vaccination requirements at all.
As of the writing of this article, only a handful of cases have been decided; yet, there are surely more to follow.
The good news for employers is that a vaccination-or-test policy appears to be reasonable, and it is unlikely a court will order an interlocutory injunction to enjoin a vaccination-or-discipline policy. That said, whether any vaccination-or-discipline policy will ultimately be found to be reasonable will involve a much more nuanced and contextual analysis; in other words, it is likely to depend on the circumstances.
We will continue to follow this issue closely and keep our readers updated.
To learn more, and for assistance, contact the team at Sherrard Kuzz LLP.
1Amalgamated Transit Union, Local 113 et al v Toronto Transit Commission and National Organized Workers Union v Sinai Health System, 2021 ONSC 7658; Blake v University Health Network, 2021 ONSC 7139; Lavergne-Poitras v Canada (Attorney General), 2021 FC 1232.
22021 CarswellOnt 16048 (Ont Arb) (von Veh).
32021 CarswellOnt 18219 (Ont Arb) (Stout).
42021 CarswellOnt 18220 (Ont Arb) (Murray).
