Ontario Arbitrator Upholds Employer’s Mandatory Vaccination Policy

On November 9, 2021, an arbitrator in Ontario issued what we anticipate is the first arbitration decision issued concerning the enforceability of a mandatory COVID-19 vaccination policy.

In United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. Arbitrator von Veh, Q.C. upheld the employer’s mandatory vaccination policy, finding that it was reasonable, enforceable and compliant with the Ontario Human Rights Code.

The Facts

Paragon Security (the “Employer”) is Canada’s largest privately-owned security company. It employs and trains approximately 4,400 security personnel. The Employer’s security personnel are unionized and represented by the United Food and Commercial Workers Union (the “Union”).

The Employer instituted a policy mandating its employees to be fully vaccinated with a Health Canada approved COVID-19 vaccine by October 31, 2021 (the “Policy”). The Employer determined that the Policy was operationally necessary given employee concerns that co-workers had not received the vaccine and that the majority of its clients were requesting only fully-immunized security personnel. The Employer provided an exemption to the Policy for employees who were unable to be inoculated for health or religious reasons.

The Union grieved the Policy, arguing that it was unreasonable and that it had the potential to create health issues for its members.

The Decision

The Arbitrator upheld the Policy. He found that the Policy was reasonable as it does not force employees to be vaccinated, and provides an exemption for employees who cannot be vaccinated for health or religious reasons.

Arbitrator von Veh considered the 2018 decision in St. Michael’s Hospital v. Ontario Nurses’ Association, 2018 CanLII 82519 (O.N.L.A.) (“St. Michael’s”), which previously ruled against a health employer’s policy mandating masking for employees not inoculated against influenza. Notably, the Arbitrator distinguished St. Michael’s because that decision did not deal with the pandemic conditions which currently exist with the COVID-19 pandemic.

The Arbitrator specifically considered employee choice and personal preference. The Arbitrator noted that “there is a wealth of scientific information available on the pandemic and COVID-19” and states that “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations” (p. 19). In doing so, he cited the Ontario Human Rights Commission policy statement on COVID-19 which provides that “a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code.”

The Arbitrator also helpfully found that the Employer, in implementing the Policy, satisfied its obligation to protect the health and safety of its employees under the Occupational Health and Safety Act.

Collective Agreement Term re: Vaccination Requirements

Interestingly, the collective agreement at issue contained vaccination requirements for employees. Article 24.05 of the parties’ Collective Agreement stated as follows:

“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…Where an employee refuses such vaccination or inoculation for any reason, the company shall reassign the employee as per the relevant provisions of this agreement” (at page 5).

Although the Union argued the Policy was in direct violation of the Collective Agreement, Arbitrator von Veh found that the Employer correctly incorporated the principles of Article 24.05 into the Policy, highlighting that the language states the employee must agree to receive inoculations where the site requires it.

Key Takeaways

This decision is noteworthy for BC employers in unionized workplaces, as it provides further guidance as to how adjudicators may rule on the subject of mandatory vaccinations here in BC. Although the collective agreement at issue in this case addressed the issue of vaccination, the arbitrator’s comments concerning the reasonableness of the Policy, among others, have broader application and relevance for BC employers.

If you have questions about this article, please contact your Harris lawyer or any member of our COVID-19 response team: Sari Wiens, Ilan BurkesNicole Toye or Jessica Fairbairn.