Arbitration – Vaccination Clause in Collective Agreement Results in Policy Being Upheld

By Ron Minken, Tanya (Tejpreet) Sambi and James Moon

Arbitrator Von Veh in United Food and Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd. (“Paragon”), dismissed a union’s policy grievance and upheld Paragon Security’s (the “Employer” or “Company”) COVID-19 Vaccination on the basis that it was a term agreed to in the collective agreement.

Although this may not be helpful where there is no collective agreement, or where the collective agreement does not require mandatory vaccination, the decision does provide guidance with respect to the enforceability of a mandatory COVID-19 vaccination policy under the Occupational Healthy and Safety Act and the Ontario Human Rights Code.

Facts

The Company is one of the largest privately-owned security companies in Canada, employing approximately 4,400 security personnel. The Employer’s security personnel are unionized and represented by United Food and Commercial Workers Union (the “Union”). The Employer provides security guards to its clients and their clients’ 450 work sites in Ontario.

On September 3, 2021, the Company issued a notice to its employees that there will be a new COVID-19 policy (“Policy”), which will require employees to be fully vaccinated against COVID-19 by October 31, 2021. Under the Policy, employees who fail to comply with the Policy’s requirements could potentially face disciplinary measures, up to and including termination.

The Union filed a grievance on September 13, 2021, on the grounds that the Employer violated Article 4 (“Management Rights”) and Article 24 (“Health and Safety”) of the collective agreement and the enforcement of the Policy was in violation of the Ontario Human Rights Code. The Union also submitted that the release of personal medical information, the invasive nature of the injection of COVID-19 vaccine and the Company’s Policy mandating such invasive measures were unreasonable.

The Arbitrator’s Decision

The Arbitrator concluded that the Company’s Vaccination Policy and Vaccination Exemption Policy, a term previously agreed to in the collective agreement, “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.”

Collective Agreement

The Arbitrator held that the Policy did not violate the collective agreement because it was consistent with the provisions of the collective agreement, which were negotiated and agreed to in the previous collective agreement almost 6 years prior on December 20, 2015. The collective agreement stipulates that, “if an employee is assigned to a site where specific vaccination and or inoculation is required by law or where the conditions of contractors having access to the site stipulates specific vaccination and inoculation requirement, the employee must agree to receive such vaccination or inoculation.” Therefore, the Arbitrator found that not only did the enforcement of COVID-19 Policy not violate the collective agreement, but rather, the Policy was in fact, consistent with the collective agreement.

Occupational Health & Safety Act

In addition, the Arbitrator held that the Company’s Vaccination Policy and its Vaccination Exemption Policy satisfies the Occupational Health and Safety Act (“OHSA”) obligations and responsibilities of the employer to take, “every precaution reasonable in the circumstances for protection of its workers”.

Human Rights

The Arbitrator further held that the Policy is not in violation of the Ontario Human Rights Code. Mandating and requiring proof of vaccination to protect people at work is generally permissible under the Human Rights Code, “as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.”

Vaccination Policy Takeaways

As the application of this decision is very limited and as new scientific data is released, it is critical that businesses be cautious with respect to Vaccination Policies. New scientific data should continuously be reviewed in considering what reasonable precautions to take to protect workers as it may impact the decisions that are made and the potential liability an employer may have. An Employment Lawyer can help businesses make decisions in compliance with the Reopening Ontario Act, 2020 and the Occupational Health & Safety Act.

How Minken Employment Lawyers Can Help

If you require legal advice on drafting a vaccination policy or whether your vaccination policy is exceeding your requirements under the Ontario Occupational Health & Safety Act and how to avoid liability, how to draft a policy and respond to an employee who is refusing to vaccinate, contact us today to speak with one of our lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.

For regular updates, please sign up for our Newsletter to receive up-to-date Employment Law information, including new legislation and Court decisions impacting your workplace.

Please note that this article is for informational purposes only and does not constitute legal advice.