Please read this update from CUPE 23 President Bruce Campbell & your Executive:

Dear CUPE 23 Members,

We would like to update everyone on the latest information we have on the Vaccination policy the City has implemented. CUPE 23 Executive have had significant input on the policy the City has created and we have been able to ensure the employer provides options for self testing if you are not vaccinated. This is not an option in many other municipalities and we appreciate out employer being receptive to our feedback on their policy. Here’s the latest information available regarding such policies from arbitrations at the labour board.

Over the last week or so, two arbitration awards were released in Ontario dealing with mandatory vaccination policies. In the first case, UFCW, Local 333 v Paragon Protection Ltd (https://hicksmorley.com/wp-content/uploads/2021/11/UFCW-and-Paragon-Protection.pdf), the mandatory vaccination policy was upheld. In the second, Electrical Safety Authority v Power Workers’ Union (attached), it was struck down for being unreasonable.

As far as we know, these are the only arbitration awards dealing with mandatory vaccination policies in Canada so far.

Here’s a summary of both those cases:

 

UFCW, Local 333 v Paragon Protection Ltd

The Employer employed about 4400 security guards who were represented by the Union. These guards performed work at about 450 client sites. Many of these sites had implemented a mandatory vaccination policy, or intended to do so in the near future. As a result, the Employer implemented a policy on September 3, 2021, which required its employees to be fully vaccinated by October 31, 2021, unless they had a valid human rights exemption. It only provided testing as an alternative to those with human rights exemptions. The policy stated that employees could be disciplined or terminated for failing to abide by the policy (ie get vaccinated).

The parties’ collective agreement had a term setting out that employees who were assigned to client sites where vaccination was required, had to be vaccinated. This was not a new term in the collective agreement.

The Union grieved the policy, arguing that it was unreasonable and a violation of both Ontario’s Human Rights Code and its Occupational Health and Safety Act.

The Arbitrator found that the policy was reasonable and in keeping with the Human Rights Code and the Occupational Health and Safety Act. In making this decision, the Arbitrator relied heavily on a statement from the Ontario Human Rights Commission in which it took the position that mandatory vaccination policies would be “generally permissible” under the Human Rights Code as long as they provided accommodations for those with legitimate human rights exemptions to vaccination. Based on this statement, the Arbitrator found that the policy struck an appropriate balance between the rights of employees who did not wish to be vaccinated and the health and safety of the rest of its staff, its clients, and members of the public (page 18).

The Arbitrator also noted that the policy was in keeping with the Employer’s obligation under the Occupational Health and Safety Act to take “every precaution reasonable in the circumstances for protection of its workers”, and with the collective agreement provision requiring employees to be vaccinated where vaccination was required by clients (page 19). He additionally found that the policy was reasonable and in keeping with the KVP requirements for unilaterally-impose workplace policies (page 20).

 

Electrical Safety Authority v Power Workers’ Union

In this case, the Employer (an organization responsible for electrical safety in Ontario) introduced a mandatory vaccination policy very similar to the one in UFCW, Local 333, in that it provided exemptions for those with legitimate human rights issues but did not provide an alternative testing regime for those who preferred not to be vaccinated.

The Employer introduced the policy on October 5, 2021. Prior to that date, the Employer has a voluntary disclosure and testing policy that allowed employees to either voluntarily disclose their vaccination status or, if they didn’t want to do that, get tested periodically to ensure they did not have COVID-19 (para 24).

The Arbitrator found that the policy was unreasonable for a number of reasons, all of which were related to the Arbitrator’s belief that the Employer’s previous voluntary disclosure and testing regime was adequate to address the Employer’s concerns regarding workplace and public health and safety, and the Employer had no reason to deviate from that regime. As the Arbitrator noted at paras 17-18:

In workplace settings where the risks are high and there are vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated), then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.

However, in other workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a reasonable less intrusive alternative, such as the ESA’s voluntary vaccination disclosure and testing policy (VVD/T Policy) employed prior to October 5, 2021, may be adequate to address the risks.

The Arbitrator found that the Employer’s workplace fell into the latter category, as the majority of work done by the Employer’s staff was done remotely and there was no significant problem or risk related to COVID-19 that gave rise to the need to switch over from a voluntary vaccination and testing regime to a mandatory vaccination regime (paras 24-27, 29). As the Arbitrator observed at para 26, while the Employer was concerned that a testing regime would not sufficiently protect against COVID-19 transmissions in the workplace and to its clients, there was

“no evidence that these concerns have manifested themselves in any actual problems in the workplace that cannot be reasonably addressed under a policy that provides for a combined vaccination or testing regime or other reasonable means. At this point the ESA has legitimate concerns, but those concerns do not at this point justify imposing a mandatory vaccination regime with threats of discipline or discharge.”

Based on the above findings, the Arbitrator went on to find that it was not reasonable to discipline or terminate an employee for not being vaccinated where there was a reasonable alternative (ie a testing regime) (para 36). The Arbitrator further observed that it would also be unreasonable to place employees who would not get vaccinated on administrative leave without pay (para 37).

The Arbitrator distinguished his award from the decision in UFCW, Local 333, observing that the employees in that case performed all of their work at a third-party site, and there was specific language in the collective agreement requiring employees to be vaccinated where third parties required it. These factors made the mandatory vaccination policy reasonable (para 40). By comparison, in the case before the Arbitrator, most of the employees’ work was performed remotely, and there was no language in the collective agreement allowing for mandatory vaccination.

As a remedy, the Arbitrator ordered, among other things, that the Employer amend the vaccination policy to make it clear that employees would not be disciplined or discharged for not getting vaccinated, and to provide a testing option to employees who have not been vaccinated (para 41). The Arbitrator also noted that if, at some point in the future, the Employer’s workplace safety concerns around COVID-19 could not be adequately addressed by a combined vaccination and testing regime, the Employer could amend the policy to set out that employees who were not fully vaccinated could be placed on administrative leave without pay.

 

Summary

Read together, these cases appear to suggest that mandatory vaccination policies that do not include an alternative testing option for those that don’t want to get vaccinated will only be reasonable in situations where: employees are primarily performing work in person AND there is a significant risk of COVID-19 transmission in the workplace that cannot be adequately addressed by a combined vaccination and testing regime. Electrical Safety Authority in particular appears to suggest that even where mandatory vaccination policies are reasonable in the circumstances, employees should not be disciplined or terminated for breaching these policies. Rather, they should be put on administrative leave.

It is important to remember that these cases are from Ontario and have not, as far as we know, been considered in BC. We will continue to monitor the case law in BC to see how these policies are being treated in BC. However, these cases may provide an indication of how arbitrators in BC will approach mandatory vaccination policies that do not provide for an alternative.

CUPE 23 has raised concerns to the employer about the broadness of the policy, potential member-on-member issues, employees not being paid for testing, could be the subject of a grievance challenging parts of the policy for being arbitrary.

These cases are silent on whether an employee’s refusal to get testing under a joint vaccination and testing policy is grounds for discipline. However, based on the strong support for such policies in Electrical Safety Authority, we believe it’s more than likely the use of progressive discipline would be considered reasonable by an arbitrator.

Based on all of the above CUPE 23 and your Executive board are requesting that all members respond to the employers request regarding the Vaccination Policy whether vaccinated or not please do your best to communicate with the employer.

CUPE 23 is dedicated to representing all Members and will deal with any issues as the arise on a case by case basis please reach out to your Executive Board members if you have any questions or concerns. We will get through this as we have gotten through the entire pandemic. By working together and watching out for each other. Stay safe!

On behalf of the CUPE 23 Executive Board

Bruce Campbell

President