To Be or Not to Be (Vaccinated)

As recently announced by the federal government, since October 1, 2022, all COVID-19 border requirements, including vaccination, mandatory use of ArriveCAN, and any testing and quarantine/isolation requirements ended for all travellers entering Canada whether by land, air or sea.

This is welcome news as the effects of the pandemic seem to be receding and a return to “pre-COVID-19 days” seems firmly on the horizon. However, for many employers, the pandemic has introduced new  workplace arrangements such as mandatory or hybrid vaccination policies and proof of vaccination as a condition of employment. At the same time, a substantial increase in remote work or hybrid in-office work seems entrenched.

As the threat of COVID-19 decreases and there is a clamouring to return to “normal”, is it time to drop all COVID-19 workplace policies and protective measures? Perhaps not in every workplace.

Employer’s Obligations under Occupational Health and Safety Legislation   

Under provincial occupational health and safety legislation, employers have a positive obligation to ensure the health and safety of all workers. For instance, in Ontario, under section 25(2)(h) of the Occupational Health and Safety Act  (the "Act"), an employer shall “take every precaution reasonable in the circumstances for the protection of a worker”.  Workers also have a related obligation pursuant to paragraph 28(1)(a) of the Act to work in compliance with the Act.  Additionally, employers have a duty, under section 25(1)(c) of the Act, to ensure the measures and procedures prescribed are carried out in the workplace.

Although COVID-19 has become normalized in our everyday, there are still serious health consequences associated with the disease and its many variants, which employers are right to consider when determining how to protect the health and safety of their workers.

However, not all workplaces are equal and many requirements will suit industries and professions differently. As we are all keenly aware, there is no one-size-fits-all policy or measure. As a handful of recent cases suggest, adjudicators tend to adopt a cautious approach to a return to work, which may be welcome news as employers consider whether to rescind vaccination policies.

Recent Trends in Case Law

There have been several labour arbitration decisions on the reasonableness of mandatory vaccination policies in the workplace.

At least one arbitrator recently held, in FCA Canada Inc. v. Unifor, Locals 195, 444, 1285, 2022 CanLII 52913, that a two-dose vaccination policy was no longer justified as of June 25, 2022 given its efficacy against Omicron. However, most decisions tend to favour vaccination policies, provided they are well crafted with human rights legislation in mind. Arbitrator Nairn suggested that prudent employers should include “an acknowledged mechanism for ongoing, periodic review within a vaccine mandate policy.”

In another case, BC Hydro and Power Authority et Powertech Labs Inc. v. MOVEUP (Canadian Office & Professional Employees' Union Local 378), 2022 CanLII 91093, an arbitrator held that various categories of employees should not be subject to a mandatory vaccination policy putting them on a leave of absence, including employees who could work from home or worked outside and had no in-person contact with others.

That said, arbitrators have generally upheld mandatory vaccination policies ("MVP") in post-Omicron cases. However, policies that lead to termination for non-compliance tend to be viewed less favourably than those leading to an unpaid administrative leave.

This was the case in Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 and City of Toronto, 2022 CanLII 78809, where a mandatory vaccination policy required that all City of Toronto employees, volunteers and students, receive a first and second dose of an approved COVID-19 vaccine, subject to human rights exemptions. City employees who failed to comply with the policy were to be placed on an unpaid disciplinary suspension until they achieved compliance, failing which they would be terminated for cause. As a result, 13 firefighters were terminated for cause due to non-compliance with the policy.

Arbitrator Rogers concluded that the policy requirement that firefighters be fully vaccinated as a condition of their employment “was and continues to be reasonable”[1]. However, Arbitrator Rogers also found that the enforcement mechanisms were unreasonable, that is, a disciplinary suspension leading to termination for those who continually failed to comply with the policy. Arbitrator Rogers suggested instead that a reasonable alternative could have included the “removal of non-compliant employees from active employment – a consequence that has widespread support in the arbitral jurisprudence”[2].

Additionally, in Wilfred Laurier University v. United Food and Commercial Workers Union, 2022 CanLII 69168 the University required all existing employees to be fully vaccinated to access University property or to conduct University work in-person, unless they had an approved exemption[3]. Employees who were not vaccinated could be subject to discipline up to and including termination for cause.

Arbitrator Wright found that the policy was a reasonable exercise of management rights in accordance with the KVP framework[4]. Arbitrator Wright noted that the removal of the rapid antigen testing in favour of a mandatory vaccination policy in the context of the university sector, was reasonable because of the major health consequences of COVID-19 and the Chief Medical Officer of Health’s (the "COMOH") guidance. Quoting the COMOH, Arbitrator Wright stated that vaccination is “the single most effective public health measure to reduce the spread of COVID-19”[5].

In non-unionized workforces, one recent Canadian court decision, Parmar v Tribe Management Inc., 2022 BCSC 1675, examined whether an employee could claim constructive dismissal for being put on an unpaid leave of absence for failing to comply with a mandatory vaccination policy.

The court held that such a policies do not have to be perfect, but must balance the collective health and safety of workers against personal beliefs. Writing for the court, the Honourable Justice MacNaughton stated:

“Individual views of the appropriateness of Tribe’s MVP do not undermine the reasonableness of the policy, and an employee’s personal belief must give way to the health and safety concerns that form the basis for the MVP. ”[6]

Regarding the reasonableness of the MVP, the court further held:

“The MVP reflected the prevailing approach at the time. It struck an appropriate balance between Tribe’s business interests, the rights of its employees to a safe work environment, its clients’ interests, and the interests of the residents in the properties it serviced. It also satisfied its responsibility as a corporate citizen…”[7]

As this particular case did not deal with the eventual termination for failure to comply, it remains to be seen whether such harsh penalties will be enforced by courts and adjudicators for non-union employees. 

Things to Consider

Before removing any policy or measure, employers should ask themselves:

• Does this policy help further protect the health and safety of our workplace and its visitors?
• Does this policy align with our obligations under the human rights legislation?
• Does our industry require enhanced measures regarding the health and safety of our workforce and clientele? Do we work with or serve individuals particularly vulnerable to COVID-19?
• How is our workplace organized: in-office, hybrid, or remote?
• Have there been disruptive COVID-19 outbreaks in the workforce?
• Can we ensure greater flexibility, while also retaining the obligations of protecting people in the workplace?

Policies are meant to be reviewed and revised with new evidence, information, and changing times. It is important that employers stay vigilant in reviewing their mandatory vaccination policies to ensure they are compliant with their obligations under health and safety and human rights legislation.

If you have any questions about mandatory vaccination policies or recent court decisions regarding these policies, please contact the author or your regular Fasken lawyer.