In United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd., an arbitrator found that a mandatory COVID-19 vaccination policy was reasonable, enforceable, and compliant with both the Ontario Human Rights Code [Code] and Occupational Health and Safety Act [OHSA].
The employer, Paragon Protection Ltd. (“Company”), employed around 4400 unionized security guards in Ontario. The security guards performed work at approximately 450 client sites, many of which required exclusively vaccinated security personnel and would not allow anyone on their sites who has not been fully vaccinated.
On September 3, 2021, the Company introduced a COVID-19 Vaccination Policy (the “Vaccination Policy”) that required all employees to be fully vaccinated by October 31, 2021. Any employee who violated the Policy could be subject to disciplinary action, up to and including termination. The Company also introduced a related COVID-19 Vaccination Exemption Policy (the “Exemption Policy”), which allowed employees to submit requests for exemptions based on Code-protected grounds, such as disability and creed, to be considered on a case-by-case basis.
The terms and conditions of the employees’ work were governed by a collective agreement between the Company and the union. The collective agreement contained a provision which required employees assigned to a work site with a vaccination or inoculation requirement to receive such vaccinations or inoculations, or be subject to reassignment.
The union argued that the Vaccination Policy and Exemption Policy constituted an unreasonable exercise of management rights under the collective agreement and violated the Code.
The arbitrator dismissed the grievance and found the Policy to be reasonable, enforceable, and compliant with the Code and the OHSA.
The arbitrator, considering the Ontario Human Rights Commission’s (the “Commission”) policy statement on COVID-19 vaccine mandates (for more information on the Commission’s policy statement, please see our previous blog), held that the Vaccination Policy, taken together with the Exemption Policy, was compliant with the Code.
The arbitrator further found that by introducing the Vaccination Policy, the Company satisfied its obligation and responsibility to “take every precaution reasonable in the circumstances for the protection of a worker”, pursuant to the OHSA.
Lastly, the arbitrator held that the employer’s unilateral introduction of the Vaccination Policy did not violate the collective agreement. The arbitrator considered the provision specifically addressing vaccination and inoculation and found that the provision was correctly incorporated in the Policy. The arbitrator also found that the Policy was consistent with management’s right to implement, from time to time, reasonable rules and regulations, as set out in the collective agreement.
The arbitrator concluded that the Vaccination Policy and Exemption Policy successfully struck a balance between respecting the rights of employees who have not, or do not wish to be vaccinated, while respecting a safe workplace for the Company’s staff, clients, and members of the public with whom the Company’s security guards interacted.
Takeaways for Employers
This decision appears to be the first to consider a mandatory vaccination policy’s reasonableness and compliance with Ontario legislation. While the decision may be distinguishable by the specific language regarding vaccinations contained in the applicable collective agreement, it offers new and welcome insight regarding how an arbitrator may assess the enforceability of mandatory vaccination policies.
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This information is not intended as legal advice.