COVID POLICIES –
As my good friend and colleague, Howard Levitt, a senior Toronto based employment lawyer, wrote in the national Post on November 13, 2021, lawyers should approach dismissals based on provincial vaccine mandates and employer policies with caution.
In UFCW, Local 333 v. Paragon Protection Ltd., unreported, November 9, 2021, Arbitrator F.R. von Veh upheld the Employer’s policy requiring its employees, including some 4,400 security guards, to be fully vaccinated by a certain date. The Union grieved, claiming that the policy violated the collective agreement’s management rights and vaccine provisions as well as the Ontario Human Rights Code. In part, the Employer’s policy was based on the fact that more than half of its clients required fully vaccinated guards at their work sites. At the time of the arbitration, a majority of its clients required fully vaccinated guards.
The Arbitrator found the policy reasonable, enforceable and compliant with the Human Rights Code and the Occupational Health and Safety Act, the latter requiring employers to take every reasonable precaution to safeguard their workplaces. The Arbitrator referred to the Ontario Human Rights Commissions considerations that subjective “personal preferences” could not override and displace available scientific considerations. The policy provided for exemptions for religious and medical grounds. The Arbitrator dismissed the grievance.
In Electrical Safety Authority v. Power Workers’ Union, unreported, November 11, 2021, Arbitrator John Stout upheld the Union’s grievance of the Employer’s policy requiring employees to be fully vaccinated by a certain date, unless exempted on human rights grounds. Employees failing to follow the policy would be placed on unpaid leave and subject to discipline, including termination. Unlike the Paragon case, there was no vaccine provision in the collective agreement. The Employer relied on its management rights.
The Arbitrator referred to the requirements of the Occupational Health and Safety Act. The Arbitrator favoured a balancing of the various interest approach. Some workplaces might require mandatory vaccination, for example in elder care working with vulnerable patients, others not, for example where employees are working remotely. The Arbitrator mentioned that the government had not seen fit to put in place a vaccine mandate for the ESA employees. The Employer’s previous policy required that employees who had not been vaccinated to undergo regular testing. This policy was not objected to by the Union. The vast majority of the employees had been vaccinated. Agreeing with the Employer’s concerns, the Arbitrator found that the Employer had not provided any analysis of the workplace dangers associated with its concerns. Many employees worked remotely and access to third party sites had not been significantly impeded. Ultimately, the Arbitrator concluded that the Employer was not entitled to discipline and terminate employees for failing to get vaccinated. The Employer was, among others, directed to provide a testing option for unvaccinated employees. Noting the “fluid” situation, the Arbitrator found that future developments in the Covid pandemic might entitle the Employer to place employees on unpaid leave.