Written by Professor Alison Braley-Rattai, Brock University
Between November 9th and the 12th, three arbitration decisions pertaining to union challenges to workplace vaccination policies were released. Collectively, these decisions shed light on some of the questions—but by no means all—raised by workplace vaccination policies.
It is well-established that in unionized workplaces the exercise of management rights must be ‘reasonable’; unions may challenge unilateral employer policies within the familiar KVP framework. It is also well-established that workers have innate privacy interests. These two points intersect with vaccination policies. A proper balancing of privacy interests with an employer’s legitimate safety (and other business) concerns, including consistency with relevant collective agreement provisions, is necessary for the “reasonable” exercise of management rights.
In the wake of the COVID-19 vaccine rollout earlier this year we witnessed a flurry of preliminary commentary attempting to apply these known legal principles to hypothetical policies.This commentary generally concluded that given the right circumstances workplace vaccination policies would be upheld (see, for e.g., here; here; and here.) But, what constitutes the ‘right circumstances’?
Context: Voluntary Vaccination versus Mandatory Vaccination
For starters, not all policies are created equal. Voluntary-vaccination policies are likely to be enforceable, but the fate of mandatory-vaccination policies is less certain. The core element of a voluntary-vaccination policy is disclosure of one’s vaccination statuscoupled with the requirement that those who remain unvaccinated or choose not to disclose will undertake testing. Here, vaccination is voluntary, but testing is mandatory.
By contrast, the core element of a mandatory-vaccination policy is a requirement to be fully vaccinated as of a certain date. Such policies will almost invariably contain a process for assessing accommodation requests on the grounds of medical need or religious belief. (A policy that did not contain such a process would likely be unenforceable.) Unlike with voluntary-vaccination, under a ‘mandatory’ policy those choosing to remain unvaccinated for ‘personal’ reasons, like skepticism about the safety or efficacy of the vaccine (see OHRC Policy statement on COVID-19 vaccine mandates and proof of vaccine certificates | Ontario Human Rights Commission) would not have testing as an available alternative.
The trio of cases referenced above, UFCW and Paragon Security, PWU and ESA, and OPG and PWU more or less cement the basic enforceability of voluntary-vaccination policies, leastways in the context of an ongoing pandemic. For example, in OPG and PWU, which concerned a voluntary-vaccination policy, Arbitrator Murray claimed that “testing unvaccinated employees is prima facie reasonable.” This appears to be the case, whatever other provisions of such a policy might be vulnerable to a challenge (for example, whether such a policy could be applied to those who would otherwise work remotely).
Indeed, in OPG and PWU, the union (PWU) did not object to testing per se. Rather, the union objected, among other things, that the costof testing, in both expense and time, was to be borne by the Employee rather than the Employer. On this count, Arbitrator Murray split the difference, determining that while the Employer would bear the expense of the test, the time to test would be supplied by Employees during uncompensated off-hours. Normally, we would expect that Employers cannot, simply, ‘download’ the costs of their unilateral policies to Employees. That said, the arbitrator concluded that uncompensated self-testing was necessary for reasons of safety (if testing is not done prior to arrival at work it undermines the point), efficiency (testing at work takes, on average, twice as long as testing at-home), and practicality (compensation for self-testing might incentivize people to choose testing over vaccination). To this last point, one might respond that if we are truly concerned about incentives/disincentives to vaccinate, it is preferable to require Employees to bear the expense of the tests as well. However, to the extent that ‘precedent’ holds, that possibility seems less likely now.
The view that voluntary-vaccination policies are prima facie reasonable is also evident in PWU and ESA, even though that case involved a union challenging a mandatory-vaccination policy. In PWU and ESA, Arbitrator Stout determined that the mandatory-vaccination policy was unreasonable, precisely because a voluntary-vaccination policy, inclusive of disclosure and testing, was sufficient to address the Employer’s safety and business concerns. This suggests that, unlike voluntary-vaccination policies, mandatory policies will not so readily be thought “prima facie reasonable”.
In PWU and ESA, Arbitrator Stout acknowledges that the Employer has many legitimate concerns. And he endorses vaccination, calling those who choose not to be vaccinated “misguided and acting against their own and society’s best interests.” He further acknowledges that testing is “fallible and a less effective intervention than vaccination”. Nevertheless, he concludes that it has the support of both the Chief Medical Officer of Health and the Employer’s expert witness who advised that “mandatory vaccination, along with testing…provides maximum protection against transmission”. If testing is less efficacious than vaccination, as Arbitrator Stout acknowledges, then it is unclear how vaccination of some and testing of others could provide “maximum protection”. Rather, vaccination and testing of the same individuals appears necessary for that degree of protection. Be that as it may, the thrust of Arbitrator Stout’s decision clearly contemplates that maximum protection—even in a pandemic—is not the bar to be met, rather, sufficiency is.
Relying upon the company’s safety record including the dearth of positive COVID cases that could be traced to the particular workplace, and given that, here, there are no “vulnerable populations (people who are sick, the elderly, children who cannot be vaccinated)” to consider, the arbitrator concluded that the Employer had “not demonstrated any difficulties in protecting their workplace utilizing a combined vaccination and testing regime.” Indeed, it appears that the only reason the Employer adopted a mandatory policy to replace its previous voluntary one was “a fear that mandatory vaccination rules and policies by third-parties may interfere with the ESA’s business”. However, Arbitrator Stout opines that no evidence of “substantial interference with ESA’s business concerns” was provided. In the absence of evidence that the previous voluntary-vaccination policy failed to address legitimate safety or business concerns, and lacking any statutory order, or vaccination-specific language in the collective agreement upon which the Employer could rely, it was “unreasonable” for employees to be “disciplined or discharged” or to be placed on “administrative leave without pay” for failing to be vaccinated.
This conclusion appears to stand in contrast to the decision in UFCW and Paragon, released two days earlier, in which Arbitrator von Veh upheld a mandatory-vaccination policy, in a context in which the Employer was also concerned for its ongoing operations. Notably, Arbitrator Stout explicates that he had occasion to read that earlier decision, and that he “did not see that decision as conflicting” with his own; the cases were “clearly distinguishable” on the basis that in the case before Arbitrator von Veh, all the workers performed at third-party sites, and there existed vaccination-specific collective agreement language (neither of which was the case in PWU and ESA). As I will suggest below, however, if the cases are distinguishable, they are not “clearly so”.
In UFCW and Paragon, the Employer stated that nearly 50% of its client base presently had mandatory-vaccination policies with that percentage increasing daily. As Paragon assigns its nearly 4400 security guards, represented by UFCW, to these third-party sites, it maintained that operational exigencies necessitated a company-wide mandatory-vaccination policy, lest its business operations be unduly compromised. However, unlike in PWU and ESA, the arbitrator appears to have simply accepted the Employer’s assertion. To reach this conclusion on the evidence would have required something further, like the number of people who remained unvaccinated and whether there was sufficient ability to assign them to those client sites where vaccination was not required. Nothing in the Award indicates that anything like that was proffered. While I hold Arbitrator von Veh’s conclusion regarding the reasonableness of the policy to be justifiable, there is little in the way of actual justification. Rather, the decision moves from the statement of facts to ultimate findings with little analysis connecting one to the other. This is particularly troubling in the context of the finding that the policy is consistent with the collective agreement.
Although unusual for a non-healthcare setting, vaccination-specific language was negotiated by the Parties in 2015. Indeed, Arbitrator von Veh opines that it was “remarkable” for there to be such “perceptive vaccination and inoculation provisions” negotiated more than “five (5) years before the arrival of the pandemic…” That language explicitly provides that when any client site requires vaccination for entry, the worker “must agree to receive such vaccination”. However, the same provision further stipulates that the worker has the right to be “reassigned” should they refuse such vaccination “for any reason”. Arbitrator von Veh adduces the “must agree to receive” language in concluding that the Employer’s policy is consistent with the collective agreement, however, he does not address the further language providing for “reassignment” when a worker refuses such vaccination. This is a problematic oversight, particularly when combined with the fact that since nothing in the Award indicates what percentage of Paragon’s unionized employees might require reassignment, we have no real sense how burdensome to the Employer’s operations reassignment would be.
I am not suggesting that a more thorough analysis of the relevant collective agreement language would have been fatal to Arbitrator von Veh’s ultimate finding that the policy is “reasonable and enforceable”. Indeed, I suspect that the Parties did not have in mind a pandemic when they negotiated the vaccination provision. Establishing the fact that pandemic considerations were not in the Parties’ contemplation and therefore should not be controlling here, would have gone a long way to addressing the “reassignment” language in the collective agreement, rather than simply ignoring it. In fact, in PWU and OPG, Arbitrator Murray appears to have done something similar when attempting to apply collective agreement language in the current context. The union challenged the policy’s provision requiring those who refuse to participate in the testing regime to be placed on unpaid leave, arguing that this was as a violation of the language in the agreement which forbids unpaid suspension prior to a “final decision” being reached on the underlying discipline. Here, Arbitrator Murray appears to privilege the particular pandemic context over the black letter of the agreement, noting that the decision to require unvaccinated persons who refuse to participate in the testing to be placed on unpaid leave is a “sensible and necessary part of a voluntary vaccination” policy, and that this conclusion is “driven entirely by context”; the “traditional interpretation” of the relevant article should apply “in all other circumstances”.
There is much more that might be said about these cases, individually and combined, as there will undoubtedly be about the further cases that will arise. For now, it is sufficient to note that there was no hint in the Awards that the pandemic was anything but exceptionally serious, nor that vaccination was anything but highly effective and to be readily undertaken. While these facts are likely sufficient to find consistently that voluntary-vaccination policies are enforceable during this pandemic, the same cannot be said for mandatory-vaccination policies.
Alison Braley-Rattai, “COVID Vaccination Policies in the Workplace: How It’s Going So Far”, Law of Work Blog (November 23, 2021): https://lawofwork.ca/braley-rattai-covidsofar/
Allow me a slight shift of perspective and legal context. Section 25(2)(h) of the Occupational Safety Act imposes a general obligation on employers to safeguard the well-being of employees at work. It says this “Without limiting the strict duty imposed by subsection (1), an employer shall, …(h) take every precaution reasonable in the circumstances for the protection of a worker”. This is a positive and pro-active obligation, that the Courts have held, is not met merely by complying with the regulatory regime. The employer must be guided by the precautionary priinciple – a word appearing in the statute itself. It must protect employees, at work. Moreover, that obligation cannot be diminished by anything in the collective agreement. You “can’t contract out of it”.
So with that in mind, do the (say) 80 % of the employees who are vaccinated have any right to be protected from the ill-advised decision of their coworkers? Or do only the refuseniks have rights? And as a thought experiment: what if the employer simply said: no vaccination, no work, without going the additional step of terminating the employment relationship? And can it plausibly be said (given the prophylactic thrust of section 25(2)(h) and the evident efficacy of vaccines), that the impugned employer policies are not “reasonable”, within the meaing of the statute? Or put differently, is the employer obliged to ignore the preferences of the majority? What if they refused to work with the unvaccinated? Would THAT be unlawful or subject to sanction: pandering to improvidence, but punishing prudence? What if prudent employees filed a grievance demanding a work enviroment as safe as it can possibly be made?
On the UFCW and Paragon Award, you argue that there was insufficient evidence to justify the Employer’s policy, and then you suggest that the Employer supplement its evidence by providing information such as the proportion of Employees who are unvaccinated. This would, one assumes, demonstrate whether the Employer would be able to meet its clients’ requirements by reassigning Employees who chose not to be vaccinated.
To collect this information, Employers would need some form of Employee attestation. To what extent would employees’ innate privacy interests guard them from submitting this information? Conversely, how could Employers implement a system that collects valid results (i.e., one that prevented false attestations)?
It seems to me that it is highly problematic to collect the evidence required to justify the policy, particularly in large organizations with multiple work locations.