According to our wrongful dismissal lawyer in Toronto, there is a growing list of decisions in the labour context that support an employer’s decision to mandate COVID-19 vaccination. Recently, another arbitrator has ruled in the employer’s favour with regard to vaccine policies. However, this time there is an added wrinkle. In Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), an arbitrator ruled that a mandatory three-dose vaccination policy was reasonable.
The Regional Municipality of York (the “Employer” or “York Region”) is in charge of the operation of two long-term care homes (“LTC Homes”). CUPE, Local 905 (“the Union”) represented the LTC Home employees.
COVID-19 has had a significant impact on long-term care homes throughout Ontario, Canada and the rest of the world. Not only because it is a congregate setting (where spread of COVID-19 is more likely) but also because older individuals and those with underlying health conditions are much more susceptible to serious disease, and death, as a consequence of contracting the virus. In the agreed statement of facts, it was acknowledged that the consensus among experts is that vaccination is the best way of keeping people safe from infection and that a third shot substantially improves the immune response to prevent infection and severe disease.
Originally, York Region had only mandated a two-dose policy for their LTC Home workers. However, when the newer variant (Omicron) began to spread in late 2021, it was decided based on scientific evidence that a booster dose was important to restoring effectiveness. Therefore, the Employer sent out a memo to all staff advising of a new policy, making three doses mandatory by January 28, 2022. In June of 2022, the Union filed a grievance against this policy.
Discussion:
The Arbitrator had to determine whether the Employer was permitted to unilaterally impose a vaccination policy in the workplace. The Arbitrator applied the KVP test to come to a decision. He dealt specifically with these three issues:
- Is the policy inconsistent with the collective agreement?
- Is the policy reasonable?
- Failure to consult the Union on the policy.
The Arbitrator agreed with York Region and found that the policy was consistent with the collective agreement. Article 11.1 of the agreement sets out principles such as the Employer being committed to protecting its employees from occupational disease, promoting a safe and healthy work environment, and employees must protect their own health and safety by complying with laws, safe work practices and procedures that are established. In reading the collective agreement, one might conclude that it actually puts an obligation on the Employer to take precautions for employee health and safety by imposing a vaccination policy.
Previously, a Provincial Directive required employers to have a three-dose vaccine mandate, which was then revoked in March of 2022. The Union argued that this fact alone made the York Region policy unreasonable. However, the Arbitrator stated that the absence of a Directive from the province on making it mandatory does not make it unreasonable. He cited that even though the Directive was no longer effective, advisory bodies in Ontario were still seriously advocating for workers in LTC Homes to be vaccinated. The Arbitrator felt the Employer had to create a mandatory vaccination policy because of the principles in the collective agreement, and scientific evidence from the Ontario Science Table.
As for the lack of consultation with the Union before announcing the policy, the Arbitrator held that he had no power to censure York Region for this, because the policy did not violate the collective agreement. Only if a provision was violated, could the Arbitrator rule in the Union’s favour on the subject of consultation.
Lesson Learned from the Decision:
For the most part, arbitrators continue to accept mandatory vaccination as being a reasonable policy. Moreover, some unions may have an even more difficult task arguing against such policies if their workforce is working in congregate settings or in places with a vulnerable population, as was the case here. Employers and unions should continue to monitor vaccination policy decisions in the coming months.