Keeping vaccine mandates

The global pandemic has made it necessary to balance the demands of workplace safety with the accepted principles of employee rights in the workplace.  With that in mind, here’s a brief overview of some decisions showing where workplace COVID vaccine policies are, and where they may be going.

Vaccination – employer policies and government mandates

In unionized workplaces, employer vaccination policies, like any other unilateral employer policies, will be assessed on the KVP “reasonableness test.” Because the circumstances of each workplace can dictate whether a policy is found to be reasonable, the conditions of work, and who the employee works for and with, will matter.

In Electrical Safety Authority and the Power Workers Union, Arbitrator John Stout found a mandatory vaccination policy that could result in discipline or discharge was unreasonable, given that most employees worked from home. The arbitrator found that the employer could arrange staffing such that fully vaccinated employees could be selected when necessary to attend sites away from home.

In contrast, the case UFCW Canada, Local 333 and Paragon Protection Ltd. involved security guards who had been dispatched to hundreds of sites to work at premises operated by third parties. The arbitrator upheld the mandatory vaccination policy and accepted it as reasonable.

Similar considerations were applied in Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175, where a mandatory vaccine policy was also upheld.

A recent decision of the Federal Court suggests that vaccine mandates at specific workplaces like government offices will also withstand challenge.

In Lavergne-Poitras v. Canada (Attorney General), the applicant sought an interlocutory injunction staying the federal “COVID-19 vaccination requirement for supplier personnel”. Under the policy, the applicant would have to show proof of full vaccination against COVID-19 to access federal government work sites.

The Federal Court dismissed the application. It found there was no serious issue to be tried because, even if the vaccine mandate engaged a liberty or security of the person interest under s. 7 of the Charter, it would not be contrary to the principles of natural justice (on the facts presented). The applicant also failed to show he would suffer irreparable harm or that the balance of convenience favoured his position.

Mandatory COVID-19 testing

The requirement of responding to the pandemic has had a significant impact on the approach of decision-makers to employee privacy.  In Caressant Care Nursing & Retirement Homes v. Christian Labour Association of Canada, a bargaining agent challenged an employer’s mandatory COVID testing policy. The bargaining agent argued it was a breach of employees’ privacy and dignity. The arbitrator upheld the policy as reasonable, weighing the intrusiveness of testing every 14 days, against preventing the spread of COVID in the home.  Even though the home hadn’t known an outbreak, the arbitrator agreed that, “given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option.”

This decision was followed in Ellisdon Construction Ltd. v Labourers' International Union of North America, Local 183, where mandatory COVID testing was upheld at a construction site.

The normal requirements around employee privacy will be likely be re-established.  The only possible change will be if mandatory vaccines do enter the workplace.  If so, a continuing requirement to inform the employer of vaccine status, and to test if granted an exemption to vaccines, may continue.

Occupational health and safety

Requirements around occupational health and safety may well be the most lasting legacy of the pandemic in the workplace.  At least one case has stated that an employer’s obligations under the Occupational Health and Safety Act may exceed public health standards. In Liquor Control Board of Ontario v Ontario Public Service Employees Union, an employer unsuccessfully challenged an OHS order to maintain greater physical distancing at the workplace as a COVID precaution. The employer argued the order exceeded the public health directives. The Ontario Labour Relations Board found that “the statutory requirement to take all reasonable precautions necessary in the circumstances for the protection of workers may require measures greater than those set out in any recommendation, statute or regulation.”

In LCBO, the Board relied upon a decision of the Ontario Court of Appeal for the principle that although employers are not required to eliminate all risk in the workplace, “it does not follow that employers need do only as little as is specifically prescribed in the regulations.” Sometimes “more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by [the OHS Act] in order to protect workers.”

It is impossible to fully predict the future of the pandemic, but for the foreseeable future, it seems likely that vaccinations will be seen as a necessary element of returning the workplace to “normal.” It is also possible that the need for “boosters” will continue as the efficacy of initial vaccines appears to diminish with time. 

Flu vaccine mandates in “vulnerable sector” workplaces (primarily healthcare) are likely to be easiest to justify. Even so, employers may also argue that operational requirements in all sectors are best served by vaccinated workers less likely to lose time and productivity to illness.

Decision-makers are most likely to look at such mandates in the context of the workplace and employee interactions with others. Remote workers are least likely to be mandated.  Arguably, mandating vaccines on the grounds that everyone would be healthier is a slippery slope toward mandating other lifestyle outcomes (such as requiring employees to eat a healthy diet). As such, it will be rejected by both unions and decision makers.

If and once provincial and federal vaccine mandates are lifted, it’s likely employers will try to include language in collective agreements requiring that employee get an annual flu shot (subject to human rights exemptions). Failing that, they’ll want to revise employer policies requiring flu shots as a condition of employment. In terms of where we are going, it may be that some form of mandates may be here to stay.