By Jeffrey D.A. Murray
Many employers across Canada are demanding their employees provide proof of vaccination against COVID-19 or face indefinite suspension without pay or termination of employment.
This is a moot issue for most employees that are either vaccinated or intend to get vaccinated. But a small minority of employees continue to resist demands to provide proof of vaccination and are on a collision course with their employers.
The legal authority of employers to demand their employees be vaccinated against COVID-19 has been hotly debated. The absence of any direct precedent on this issue has contributed to uncertainty in many workplaces. Fortunately, employers now have the benefit of two recent Ontario arbitration awards that address the issue head on.
The KVP Test
Both cases rely on the legal test established in the renowned labour arbitration case of Re Lumber and Sawmill Workers Union, Local 2537 and KVP Co. ((1965), 16 LAC 73 (Robinson)), which delineates the scope of management’s right to institute workplace rules and policies with disciplinary consequences. (the “KVP test”). The KVP test has two substantive requirements: (1) that a workplace rule or policy be reasonable and (2) that it not conflict with the collective agreement. However, most cases come down to an assessment of whether the workplace rule or policy is reasonable.
The Supreme Court of Canada has held that determining whether a workplace safety rule or policy is reasonable under the KVP test requires a careful balancing of the employer’s interest in promoting health and safety against the privacy interests of employees (See Communications, Energy, and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,  2 S.C.R. 458, which involved an employer’s random alcohol testing policy). Only where the need for the policy outweighs the privacy interests of the employees will the employer be allowed to discipline employees for breaching the policy.
1. Paragon Protection Limited
The first case to assess the legality of an employer’s mandatory COVID-19 vaccination policy is United Food and Commercial Workers Union, Canada local 333 and Paragon Protection Limited ((November 9, 2021), F.D. Von Veh, arb., (Ont. Lab. Arb)). In this case the employer employed 4400 security guards that were assigned to work at approximately 450 client sites. Many of these clients had already adopted policies requiring all third-party contractors to be vaccinated, including security guards. Presciently, the employer and union had negotiated specific collective agreement language that contemplated this exact situation in 2015. Pursuant to this language the guards needed to be vaccinated in accordance with client requirements or else be reassigned elsewhere if possible.
When most of the employer’s clients adopted mandatory vaccination policies, the employer required that all its guards provide proof of vaccination regardless of their assigned worksites.
The union grieved the employer’s policy and lost.
Regrettably, the arbitrator’s reasons are short and lack in-depth analysis. Nonetheless, it is clear that the arbitrator found the employer’s policy met the reasonableness requirement of the KVP test. The arbitrator found the policy was consistent with the employer’s duty under the Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of its workers, followed public health guidelines, was consistent with the Human Rights Code, and was adopted to meet client requirements.
2. Electrical Safety Authority
The next case to address the issue was Electrical Safety Authority and Power Workers Union ((November 11, 2021), John Stout, arb., (Ont. Lab. Arb)).
In this case the employer initially adopted a “disclose or test” policy that allowed employees to not disclose their vaccination status and instead be tested on a regular basis. The employer then changed direction and adopted a mandatory vaccination policy.
The union grieved the employer’s policy and won.
The arbitrator emphasized that the KVP test requires a nuanced approach, and that context is extremely important. He acknowledged that in workplace settings where the risk of infection is high and there are vulnerable populations such as the sick, elderly, and unvaccinated children, mandatory vaccination policies may be necessary. However, in other settings where the risk of outbreak is low and remote work is available, less intrusive measures should be considered first.
In allowing the grievance the arbitrator noted that the employer had not provided an analysis of any workplace dangers or hazards. There was no evidence that the employer’s prior “disclose or test” policy was ineffective or that the employer had experienced substantial interference to its business. Eighty-four percent of employees were vaccinated and only 14 of 415 had refused to disclose their vaccination status. Most employees could work remotely and only one customer had objected to a visit by an employee whose vaccination status was unknown. Future customer objections could be addressed by substituting a vaccinated employee and by adopting the previous testing regime.
The employer’s mandatory vaccination policy was overturned because the employer failed to prove that it’s legitimate interest in preventing the spread of COVID-19 could not be satisfied by adopting less intrusive measures such as its previous “disclose or test” policy. However, the arbitrator noted that the employer’s circumstances may change, justifying a reassessment in future. The arbitrator upheld the employer’s right to require employees to disclose their vaccination status provided the employee’s medical information is adequately protected. Clearly, requiring such disclosure is necessary if less intrusive measures are to be effective.
Employers must prove that mandatory vaccination policies are essential and that less intrusive measures are inadequate. This may include evidence that customers are demanding proof of vaccination or employee vaccination is necessary to protect vulnerable third parties. In all cases, employers should consider whether less intrusive measures such mandatory disclosure, testing, and distancing requirements will suffice.
It is important to recognize that these cases arose in unionized workplaces where the employer’s policy could be challenged under the collective agreement. However, we note that the contextual analysis adopted by the arbitrator in Electrical Safety Authority sits comfortably with the just cause analysis adopted by the Supreme Court of Canada in McKinley v. BC Tel (2001 SCC 38). The arbitrator’s conclusion that it is unjust to discharge an employee for falling to be vaccinated when there are reasonable alternatives may resonate with judges that are required to decide whether an employee’s refusal to be vaccinated provides just cause for termination at common law.
For more information, please contact:
Jeffrey D.A. Murray at [email protected] or 416-862-5525