Over the last couple of weeks, several decisions were issued by arbitrators looking at mandatory employer vaccination policies. It is clear from these decisions that arbitrators (and eventually Courts) will be considering vaccination policies on a highly contextual and case-by-case basis. We will quickly touch on important points from each decision in this article.

Ontario Arbitrator Upholds Employer’s Mandatory Vaccination Policy

The first decision we will look at is the November 9, 2021 decision from Paragon Protection Ltd. and UFCW Local 333, unreported. Here an Ontario arbitrator upheld an employer’s mandatory vaccination policy and dismissed a union grievance challenging the policy.

The employer was a security guard company who implemented a policy requiring all employees to be fully vaccinated by October 31, 2021, or they will face disciplinary measures up to and including termination. The Employer provided security guard services for approximately 450 sites, sending their personnel to the sites. Many of the sites already had mandatory vaccination policies excluding non-vaccinated individuals from accessing their site.

The Arbitrator found that the Employer’s vaccination policy was reasonable, enforceable and compliant with the Ontario Human Rights Code and the Occupational Health and Safety Act (“OHSA”). The policy was held to strike an appropriate balance between respecting the rights of employees who had not, or did not wish to be vaccinated, while respecting a safe workplace for the Employer’s staff, clients, and members of the public with whom the Employer’s security guards interacted.

The Arbitrator held that by introducing the policy, the Employer was fulfilling its obligations and responsibilities pursuant to s. 25(2)(h) of the OHSA to take “every precaution reasonable in the circumstances for the protection of a worker.” Moreover, the Arbitrator held that an employee’s subjective perceptions of the COVID-19 vaccine were insufficient grounds for an exemption.

In this case there was also language in the Collective Agreement that required employees assigned to a work site which had a vaccination requirement to receive such vaccination or be subject to a reassignment - this was a factor that helped the Employer.

Ontario Arbitrator Holds Unionized Employer’s Vaccination Policy Unreasonable

The second decision issued was between Electrical Safety Authority and Power Workers’ Union on November 11, 2021. Here the Arbitrator found that although it is not unreasonable to require employees to confirm their vaccination status, it was unreasonable to implement a policy where employees were disciplined, discharged or placed on an unpaid leave for failing to get fully vaccinated. The Arbitrator did note however that “that may change as the situation unfolds in the coming weeks and months.”

The Arbitrator also noted that in workplace settings where the risks are high (e.g. involving vulnerable populations) then “mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.”

The Electrical Safety Authority (Employer) had a voluntary vaccination and testing policy in place prior to October 5, 2021, which permitted employees who did not voluntarily disclose their vaccination status to be tested for COVID-19 on a regular basis. The Power Workers’ Union (Union) did not object to this policy. On October 5, 2021, the Employer introduced a mandatory vaccination policy (Policy) which required all staff to be fully vaccinated, subject to a valid exemption under the Human Rights Code, as of various dates depending on the employee’s role.

The Union asserted in this grievance that the Policy was an “unreasonable and a significant over-reaching exercise of management rights, which violates the Collective Agreement as well as employees’ privacy rights and right to bodily integrity.”

The Arbitrator stated, among other things, that there was no specific provision in the Collective Agreement which addressed vaccinations, the employer had not previously required employees to be vaccinated and there was no legislated requirement that the Employer’s employees be vaccinated.

The Arbitrator concluded that aspects of the Policy were unreasonable and the vaccinate or test policy that existed prior to October 5, 2021 was a reasonable alternative. If the number of unvaccinated employees “creates real problems” for the Employer’s business that “cannot be addressed in any other reasonable way, then the [Employer] may need to take other measures, including placing unvaccinated employees on administrative leave. If the [Union] objects to such measures, then the issue may be brought back before me on an expedited basis.”

BC Labour Relations Board Dismisses Union Application to Suspend Mandatory Policy

The latest decision, and to our knowledge first BC decision, was issued on November 19, 2021 by the BC Labour Relations Board (ICBC and BCHydro and Powertech and Canadian Office and Professional Employees’ Union, 2021 BCLRB 181). Here the Board denied the Union’s application for an interim order to suspend the mandatory vaccination policies issued by ICBC, BCHydro and Powertech employers affecting unionized employees.

The Union filed applications under the Labour Relations Code against the Employers and their mandatory vaccination policies alleging breach of obligations under section 54 of the Code which says:

Section 54 of the Labour Relations Code (the Code) is applicable “if an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies.”

The applications have not taken place yet, however the Union in this case applied for an interim order to suspend the policies until the applications can be fully decided on. The Board analyzed the applicable case law and tests for granting this type of interim application, and found that an interim decision on this issue is not necessary in this case. The Board held that the issue must be decided on by the arbitrator tasked with determining the merits of the Policies themselves, and “granting interim relief over an issue that was properly within the jurisdiction of an arbitrator in this case would improperly tilt the balance in favour of the Union.”

Takeaways

Our first takeaway is to keep in mind that these decisions so far are all based on unionized workplaces with Collective Agreements in place, and the two decisions made on the merits of the policies are Ontario-based. These Board decisions are very fact specific and contextual and different standards and tests are applied for unionized Employers governed by Collective Agreements versus private Employers.

These first few decisions illustrate the importance of factual context in these types of cases. What is permissible in one workplace for one group of workers may not be in another. What is not permissible now may be permissible at another time as conditions change. And the key takeaway should be to get legal advice specific to your workplace and your employees when developing, implementing, enforcing and updating your vaccination policy.

We will continue to see more decisions come out in British Columbia over the next weeks or months, so stay tuned and don’t hesitate to reach out to our Group with any questions in the meantime!

About KSW Lawyers and our Employment & Labour Group

KSW Lawyers (Kane Shannon Weiler LLP) was founded in 1973. Today, we maintain office locations in Surrey, South Surrey/White Rock, Abbotsford, Langley and Vancouver, and our lawyers serve clients throughout the Fraser Valley and Lower Mainland. Our firm is well known among the various industries in which we operate for our professionalism, integrity and diligent representation. We offer services in a large variety of areas including: Business & Corporate, Employment & Labour, Tax, Real Estate, Litigation & Disputes, Wills & Estates and more.

At KSW Lawyers, the main goal of our Employment & Labour Group is to empower our clients with the knowledge to make the right decisions in their workplace. We do this by educating employers on their rights and obligations and tirelessly working with them to achieve the outcome that meets their objectives.

Why choose to work with us? We see all the angles. We are versatile. We are experienced. We are local.

Our Employment & Labour Group lawyers include: Chris Drinovz, Mike Weiler, Jesse Dunning, Junki Hong and Alejandra (Ale) Henao.

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW Lawyers and Head of the Employment & Labour Group. Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, human rights & discrimination, and WorkSafeBC matters, including occupational health & safety.

Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce. In April 2021, Chris was recognized in the 2021 Canadian Legal Lexpert Directory as a Leading Lawyer to Watch in the practice area of employment law for employers and employees.

You can reach Chris by email at cdd@ksw.bc.ca or by calling 604-746-4357.

Mike Weiler is senior counsel with the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Mike works closely with Chris and specializes in labour law and helping unionized employers with Labour Relations and Union Advice. Mike has more than 35 years of experience practicing employment, labour and human rights law, and related areas, including governance and shareholders rights (and corporate defences to same). He represents employers, management, executives and other senior employees.

You can reach Mike by email at mweiler@ksw.bc.ca.

Our Employment & Labour Law Group can assist your business with following services:

• Advising on day-to-day employee relations; dismissal planning, imposition of discipline, promotions, health and insurance benefits, pension benefits, and human rights issues such as discrimination, harassment, and accommodation, and dealing with employees on medical leave;
• Labour Relations and Union Advice for unionized Employers; strategies to avoid union organizing, and defending applications for certification, defending charges of unfair labour practices, applying for relief from picketing & strikes, collective bargaining & advice on collective agreement, representation at labour relations board & court applications along with grievances and arbitrations, labour disputes & injunctions, and general strategic planning;
• Conducting and assisting with investigations into employee misconduct and guiding appropriate disciplinary actions, including just cause termination;
• Preparing employment contracts for individual employees in any employment setting, including professional and executive-position employees;
• Preparing enforceable independent contractor agreements for all non-employee relationships;
• Preparing, advising on, and litigating restrictive covenant agreements such as non-competition and non-solicitation agreements including preparation of cease and desist letters and/or interlocutory injunctions against employees in breach;
• Preparing workplace policies and employee manuals;
• Defending all manner of claims by employees including provincial and federal Employment Standards claim, claims under the BC Human Rights Code or Federal Canadian Human Rights Act, and wrongful dismissal in the BC Supreme or Provincial Courts;
• Assisting with any aspect of Employment Insurance or Canada Pension Plan disability matters including advice on appropriate responses to Service Canada regarding employee’s applying for employment insurance after dismissal;
• Assisting with WorkSafeBC protested claims where the worker's claim is disputed at all levels including the Review Division and Workers Compensation Appeal Tribunal;
• Handling discriminatory action complaints brought by employees under the Workers Compensation Act;
• Assisting with workplace occupational health and safety matters and assessment matters, including appealing penalties imposed by WorkSafeBC; and

If you believe you may need assistance in any of these areas, please contact our team and we will be pleased to assist you.

Sincerely,

and KSW Lawyers

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at cdd@ksw.bc.ca.

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