In a recent arbitration decision, Extendicare Lynde Creek Retirement Residence and United Food & Commercial Workers Canada, Local 175 [Extendicare], the arbitrator upheld an employer’s mandatory vaccination policy. This decision falls within a line of recent arbitration decisions where arbitrators have upheld mandatory vaccination policies as reasonable, even as provinces have recently lifted their COVID-19 public health measures. See our blog posts about two of these other recent decisions, here and here.
We have provided a more detailed explanation of the significance of this arbitration decision for employers in a separate blog.
A summary of Extendicare is written below.
Background
In Extendicare, the Arbitrator provided a “bottom line decision” for an issue related to a retirement home’s COVID-19 Immunization Policy (the “Policy”). The retirement home (the “Employer”) announced its Policy on or about August 26, 2021, and the Policy came into effect as of October 12, 2021.
The Police contained various measures and requirements related to COVID-19, including a requirement that all newly hired employees be fully vaccinated as a condition of employment, and another requirement for all existing employees to be fully vaccinated or fully immunized from October 12, 2021 onwards. The Policy included a provision for applicable accommodation requirements under the Human Rights Code [Code].
The Employer revised the Policy to clarify that “fully vaccinated” or “fully immunized” meant that all employees would be required to receive all booster vaccinations that are recommended by Health Canada from time to time and in the future. Employees who failed to comply with the vaccination requirements on the Policy would be placed on an unpaid leave of absence, and could be subject to additional corrective action including dismissal from employment.
Decision
Upon requests from both parties, the Arbitrator issued a “bottom line award”. The Arbitrator concluded that the Policy remains to be a reasonable workplace rule that is consistent with related requirements, the Collective Agreement, Occupational Health and Safety Act [OHSA], and the Retirement Homes Act, 2010. Notably, the Arbitrator emphasized that his finding was not impacted by the recent decision from the Ontario government and other public health authorities to reduce or eliminate various vaccine and other COVID-19 related requirements for staff, contractors, and visitors in the context of retirement homes, long-term care homes, and more generally across other facilities and venues.
