Union's claim denied as arbitrator upholds mandatory vaccination policy
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Union's claim denied as arbitrator upholds mandatory vaccination policy
Ed Canning
Hamilton Spectator
Friday, November 26, 2021
On Sept. 3 of this year, a company that supplies security guards to various establishments sent out a notice indicating that employees had to be vaccinated by Oct. 31.
The announcement noted that the majority of clients had implemented mandatory vaccination policies for anyone on site and that those policies included contract employees. The few clients that did not have mandatory vaccination policies were in the process of implementing them. The company also noted that many employees had raised concerns about working with unvaccinated people. The union grieved the policy, arguing that it was unreasonable and violated the collective agreement.
It is important to note that the Ontario Human Rights Commission has shared its view that mandating vaccination to protect people at work or when they were receiving services was permissible under the Human Rights Code and that people’s personal preferences with respect to the vaccine were not protected by the Ontario Human Rights Code. The code protects an objection based on religion, creed or a medical exemption, but the commission has said the duty to accommodate does not necessarily mean those people get to go to work and get paid. If it would expose other employees and clients to unreasonable risk, it would be an undue hardship to have to accommodate those people.
The union’s argument was that the rush to implement vaccination policies was unfair to their members and those members were concerned about incurring additional health issues. The company argued that the management rights section of the collective agreement said the company could “make, enforce and alter, from time to time, reasonable rules and regulations to be observed by the employees.” The company had appropriately indicated it would do its best to accommodate exemptions provided by the Human Rights Code but that did not necessarily mean continued employment. An employee’s place of work might be changed, and if that was not possible, they would be put on leave without pay.
The arbitrator found the company’s policy was enforceable and compliant with the Ontario Human Rights Code. The arbitrator noted that the company has an obligation to protect the health and safety of its employees, which includes that an employer must take “every precaution reasonable in the circumstances for the protection of its workers.”
Scientific evidence from experts was not called at this hearing. The arbitrator stated: “There is a wealth of scientific information available on the pandemic and COVID-19. I find that personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.” As far as I know, this is the first reported decision on this issue. It should be noted that it is an arbitrator’s decision and does not bind the Ontario Human Rights Tribunal or a judge in a courtroom.
It leaves unanswered questions about rapid antigen testing. Some employers have allowed frequent testing for the unvaccinated to allow them to work. Many employers have not. The employers that have not allowed for testing would argue that it’s like closing the barn door after the horses have escaped. It is not sufficient protection for clients or colleagues if the employee has already been working while contagious. It may limit transmission, but it won’t prevent it.
The union had tried to argue that the Health Care Consent Act, which prohibits any medical procedure being forced on anyone, means that there could not be a mandatory vaccination policy. The problem with that argument was that the Health Care Consent Act applies to people who provide medical service, and nobody is proposing to hold anyone down to vaccinate them. They have a choice to make. There are consequences. It would appear that the law is going to uphold those consequences.
Ed Canning practices employment and human rights law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at [email protected]For more employment law information; www.hamiltonemploymentlaw.com
