UFCW, Canada, Local 133 v Paragon Protection Ltd., (von Veh) (unreported, Nov 9, 2021) is a new Ontario labour arbitration decision wherein a labour arbitrator found that a mandatory COVID-19 vaccination policy imposed by an employer was a valid and reasonable exercise of management rights.
This case is important because it is (I believe) the first in Canada dealing with the reasonableness of mandatory vaccination policies as a condition of employment. The case could have substantive persuasive weight outside of Ontario in other provinces (such as Alberta) that have yet to have a decision issued on the subject.
Facts
The following is a summary of what I see as the most significant facts leading to this outcome:
- This involved a unionized workplace;
- The employer was in the business of providing security guards at buildings and worksites;
- Many of the employer’s clients- third parties- had implemented at their buildings and sites mandatory vaccination policies for any employer or contractor on their premises, and the employer had been notified by some further clients that such policies were forthcoming;
- Some of the employer’s own employees had expressed a concern about their personal safety, given that not everyone was vaccinated;
- The Collective Agreement – almost prophetically – contained a clause which stated that if client sites required vaccination, then employees would be required to either vaccinate could be relocated to another site;
- The employer circulated a notice on September 3 that, by October 31, 2021, all employees had to be fully vaccinated against COVID-19, unless they had a valid medical or religious exemption contemplated by human rights:
- The policy did not allow exemptions for any other reason
- The policy did not offer any alternatives to vaccination, such as testing
The union grieved, arguing that the policy was unreasonable.
Analysis / Conclusion
The Arbitrator found that the employer’s mandatory vaccination policy was reasonable, enforceable and compliant with the Ontario Human Rights Code and the Occupational Health and Safety Act of Ontario. The Arbitrator found:
I find that the Company’s Vaccination Policy and Vaccination Exemption Policy strike a balance in order to respect the rights of employees who have not, or do not wish to be vaccinated, while respecting a safe workplace for “Staff” as defined in the Vaccination Policy, the Company’s clients, and members of the public with whom the Company’s security guards interact.
[…]
I find that receiving the COVID-19 vaccine is voluntary …
Paragon, At p 18-19
My Take
This decision could have a major impact both inside and outside Ontario, as the first of what are surely to be many decisions on this subject. The facts of this case have several distinguishing features which may lower the odds that it will be adopted elsewhere:
- The employees were mostly working on sites that had mandatory vaccination policies in place for any contractors on site. This created a direct imperative business need to comply by imposing the vaccination policy on the employer’s own workforce;
- The collective agreement explicitly provided the employer with the right to require vaccination where it was a condition on client sites, and to relocate employees who refused. This is a fairly unusual feature for a collective agreement (or any older employment contract).
For my part, I must admit I have mixed feelings about the decision. On the one hand, I am happy that the official case discussion has begun and that we are no longer in the zone of pure speculation about what the cases will say about these issues. On the other hand, I think the case is unnecessarily harsh. The notion that this policy “strikes a balance” between those who wish to get vaccinated and those who don’t, and that vaccination under this policy is voluntary, is hard for me to accept. I think it is a clear violation of employee rights to mandate vaccination as a condition of employment.
So, in that context, I think the main question boils down to whether there is a reasonable alternative available to the employer that would establish the valid objective, short of the all-or-nothing approach. I think that is at the heart of the exercise of management rights in this context. I provide below an example of what I think would satisfy that objective, but in a less intrusive – and in my view more reasonable – manner than that imposed by the employer in the summarized case:
- Any employee working on a client site which mandates vaccination of contractors must either:
- Get vaccinated, unless they have disability or religious exemption or the site allows rapid testing, OR
- Be relocated, if a position is available, OR
- Get placed on leave, if a position is not available, until an acceptable position is available
- Any employee not working on a client site which mandates vaccination of contractors must either:
- Get Vaccinated, unless they have a disability or religious exemption, OR
- Undergo rapid testing every 3 days.
It will be interesting to see where the caselaw goes from here.
This decision is unreported. If you need a copy, please email me at jfairbrother@bowriverlaw.com.
