Ontario Arbitrator Upholds Employer’s Mandatory Vaccination Policy

On November 9, 2021, an Ontario arbitrator dismissed a policy grievance challenging a mandatory COVID-19 vaccination policy. In Paragon Protection Ltd. and UFCW Local 333, unreported, the Employer, a security guard company, had required all its employees to be fully vaccinated by October 31, 2021, or face potential disciplinary measures, up to and including termination. The policy was challenged by the Union as being unreasonable.

The Employer employed approximately 4400 security guards and operated at more than 450 client sites in Ontario. A majority of those client sites had mandatory vaccination policies in place, requiring exclusively vaccinated security personnel and in some instances, excluding all non-vaccinated individuals from those sites.

The Employer introduced its vaccination policy on September 3, 2021. The vaccination policy required that all employees be fully vaccinated by October 31, 2021. For a two dose vaccine, employees had to receive their first dose by September 30, 2021 and their second dose by October 31, 2021. For a single dose vaccine, employees had to receive the dose by September 30, 2021. For employees assigned to client sites that required all personnel to be fully vaccinated before October 31, 2021, those employees had to be fully vaccinated by that earlier date.

The Arbitrator found that the Employer’s vaccination policy was reasonable, enforceable and compliant with the Ontario Human Rights Code and the Occupational Health and Safety Act (“OHSA”). The policy was held to strike an appropriate balance between respecting the rights of employees who had not, or did not wish to be vaccinated, while respecting a safe workplace for the Employer’s staff, clients, and members of the public with whom the Employer’s security guards interacted.

The Arbitrator held that by introducing the policy, the Employer was fulfilling its obligations and responsibilities pursuant to s. 25(2)(h) of the OHSA to take “every precaution reasonable in the circumstances for the protection of a worker.” Moreover, the Arbitrator held that an employee’s subjective perceptions of the COVID-19 vaccine were insufficient grounds for an exemption.

The Arbitrator also discussed and distinguished the mandatory COVID-19 vaccination policy with older arbitration decisions pertaining to policies requiring employees to obtain a flu shot or wear a mask. The Arbitrator held that there are differences between influenza and the COVID-19 pandemic. In doing so, the Arbitrator compared the higher infection and fatality rates of COVID-19 compared to the seasonal flu.

Finally, the arbitrator noted that the Collective Agreement contained a provision that required employees assigned to a work site which had a vaccination requirement to receive such vaccination or be subject to a reassignment.  The Employer’s unilateral introduction of its vaccination policy was therefore a permissible exercise of management rights pursuant to the Collective Agreement.

This is the first decision that we are aware of where a mandatory COVID-19 vaccination policy was upheld and found to be reasonable.  Although the Arbitrator considered unique collective agreement language in this decision, this decision also supports the position that mandatory COVID-19 vaccination policies are reasonable as long as it is compliant with the Human Rights Code.

If you have any questions about mandatory COVID-19 vaccination policies, other COVID-19 related issues or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

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