Mandatory Vaccination Policies Must Be Reasonable
The Power Worker’s Union (“PWU”) has won a victory for unions seeking to challenge employers’ mandatory vaccination policies. On November 11, 2021 Arbitrator Stout found that aspects of the Electrical Safety Authority’s (“ESA”) mandatory covid-19 vaccination policy to be unreasonable in the circumstances.
This decision comes only two days after Arbitrator von Veh upheld a similar vaccination policy in United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. (Paragon) that had been implemented at Paragon Protection Ltd. There are key findings in Arbitrator Stout’s decision that will inform future attempts by unions to challenge an employer’s mandatory vaccination policy.
Background and Decision
The ESA had adopted a “voluntary” vaccination policy in September 2021. Under that policy, employees could voluntarily disclose their Covid-19 vaccination status or alternatively, could opt to be tested for Covid-19 regularly. The policy being decided on by Arbitrator Stout was implemented in October and required employees to disclose their Covid-19 vaccination status or face potential discipline including termination and being placed on unpaid leave. Under the new policy there was no longer an option for employees to be tested regularly instead of disclosing their vaccination status.
Arbitrator Stout found that nothing in the collective agreement referenced vaccination of any kind, nor had employees previously been asked to disclose their vaccination status for other vaccines before the Covid-19 pandemic. Similarly, there is nothing in the law that requires employees of the ESA to be vaccinated.
The usual standard as explained by Arbitrator Stout, when assessing an employer’s policies is set out in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. The standard requires that the policy must not be unreasonable. The test involves the “balancing of interests” where the context of each individual case is important to the analysis.
Though the employer may encroach on individual employee rights where health and safety are at stake, Arbitrator Stout found that the mandatory policy was not reasonable in the circumstances.
In determining the reasonableness of the ESA’s mandatory policy Arbitrator Stout emphasized that there had been no problems with the previous voluntary vaccination policy and that Covid-19 had not caused major disruptions to the ESAs business.
Arbitrator Stout also noted that those employees who need to travel to third-party premises for the employer had not faced significant problems with regards to that access. Further, the PWU does not object to only vaccinated employees being assigned to travel. Travel is not the majority of the ESA’s business nor is it clear that third-party vaccine policies have significantly affected the ESA’s business. Most employees at the ESA have been working remotely and are entitled to continue working remotely under the current CA. There have also not been any Covid-19 outbreaks at the ESA.
The ESA has legitimate concerns related to Covid-19 and employee safety, but those concerns do not justify the mandatory policy’s threats of discipline or discharge. The ESA had not consulted their Joint Health and Safety Committee to discuss the policy, and had “jumped to a hasty conclusion without turning their mind to the validity of the concerns and analyzing if the concerns will manifest themselves in serious workplace problems that cannot be addressed by a policy that combines vaccination with a testing alternative”.
Importantly, Arbitrator Stout did not discount the possibility that circumstances may change and a mandatory vaccination policy may become reasonable, just as a previously reasonable policy may become unreasonable in new circumstances.
Arbitrator Stout ordered that the ESA’s mandatory policy be amended such that:
- Employees will not be disciplined or discharged for not being vaccinated
- ESA allow testing as an alternative for those who have not been vaccinated
- ESA may amend their policy to allow employees to disclose their status in order to gain access to third-party premises or the employees can choose to disclose their status on a case-by-case basis.
Arbitrator Stout was careful to distinguish the previous award of Arbitrator von Veh from his own. In von Veh’s award, the employer’s business (a security company) is conducted primarily on third-party premises. He also notes the different language used between the two collective agreements in regards to health and safety policy. This distinction is important as it shows that Arbitrators, and likely judges, will be looking to the specific facts of each policy, workplace reality, and collective agreement to determine the reasonableness of mandatory vaccination policies.
Vaccination policies must be reasonable and appropriate to the context in which they are implemented and enforced.
A vaccination policy that is reasonable in one context may not be reasonable in another context or in the future if circumstances change.
In unionized environments, it will be important for employers to consider the terms of their collective agreement when considering any vaccination policy.
Employers should consider consulting their Joint Health and Safety Committees when drafting vaccination policies.
The ESA has not yet indicated whether they plan to seek judicial review of the decision.