Williams HR Law LLP

Key Points for Employers in Relation to Recent Arbitration Decisions Which Upheld Mandatory Vaccination Policies as Reasonable

April 26, 2022

Previously, we wrote about three recent arbitration decisions where mandatory vaccination policies were upheld as reasonable. A brief summary of each of these decisions is below.

Extendicare Lynde Creek Retirement Residence and United Food & Commercial Workers Canada, Local 175 [Extendicare]

In Extendicare, the Arbitrator held that a retirement home’s COVID-19 Immunization Policy was reasonable. In providing reasons for his decision, the Arbitrator noted that his finding was not impacted by the decision from the Ontario government and other public health authorities to reduce or eliminate various COVID-19 related requirements in the context of retirement homes, long-term care homes, and more generally across other facilities and venues.

For more details about this decision, please visit our previous blog.

Unifor Local 973 and Coca-Cola Bottling Limited [Coca-Cola Bottling Ltd.]

In Coca-Cola Bottling Ltd., an employer’s COVID-19 mandatory vaccination policy was upheld as reasonable. Notably, the Arbitrator referred to the reduced reliability of rapid antigen tests for detecting cases of the Delta and Omicron variants. In contrast, the Arbitrator stated that COVID-19 vaccines were proven to be a safe and effective way to combat the transmission of the virus.

A more detailed summary of this decision can be found in our previous blog.

The Toronto District School Board and CUPE, Local 4400 [TDSB]

Lastly, in TDSB, an Arbitrator concluded that a mandatory vaccination policy was a reasonable exercise of management rights. In his decision, the Arbitrator focused on the importance of context, and stated that in a school environment containing many vulnerable people, vaccination against COVID-19 was necessary to protect this extremely vulnerably population.

A more detailed summary of this decision can be found in our previous blog.

Key Takeaways for Employers

Employers should note the series of recent arbitration decisions which have upheld COVID-19 vaccination policies suggest a broader trend of COVID-19 vaccination policies being viewed as reasonable despite Ontario’s recent decision to lift various COVID-19 health and safety measures. As part of the Ontario government’s plan to manage COVID-19 in the long-term, various orders, recommendations, directives, and public health requirements have been rescinded. As of March 28, 2022, Ontario employers are no longer required to follow the public health recommendation to maintain a mandatory vaccination policy. Despite the rollback of these measures, these cases confirm that employers may still choose to continue requiring its employees to be fully vaccinated against COVID-19, provided that their vaccination policies are balanced and carefully-drafted.

Recently, there has been a sharp increase in the number of daily COVID-19 cases in Ontario, and the emergence of new variants such as the BA.2 Omicron subvariant continues to pose a risk to the health and safety of individuals, especially for those belonging to vulnerable groups.

Although various COVID-19 public health and safety measures have been lifted in Ontario, employers should consider the specific health and safety risks within their workplace, especially in crowded workplace settings or where employees are frequently dealing with members of the public. In these circumstances, an employer may choose to retain its mandatory vaccination policy to ensure that it is doing everything possible to comply with its health and safety obligations under the Occupational Health and Safety Act.

Employers that maintain their vaccination policies should, however, continue to update their policies to reflect the changing reality of the pandemic, including changes in the dominant variants. For example, as new variants become dominant which have different levels of health impact, vaccine efficacy or testing efficacy than prior variants, vaccination policies may need to be amended to reflect these changing circumstances. For advice about whether your organization should maintain or amend its vaccination policy, contact one of our lawyers.