We understand this situation is frustrating for many of you.
We continue to hear from members across all sectors expressing concerns about the various COVID-19 vaccination mandates that have been implemented by employers.
There are active individual and policy grievances filed against virtually every employer for a number of different reasons. While AUPE represents members across several sectors, both public and private, it is not helpful to compare what one employer is doing with what another is.
Each individual employer has the right to establish the policies as it sees fit, as long as they don’t violate the collective agreement or any laws in place. With no clear directive from the provincial government, there is no requirement that any policy be implemented uniformly across employers.
In the same way, each collective agreement has different language which is why grievances about this matter from members are being handled on a case-by-case basis.
Recent arbitration decisions from Ontario can offer some guidance as to how those grievances may be resolved, although every grievance is ultimately decided on its own merit. In United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. (Paragon), Ontario Arbitrator F.R. von Veh in Ontario dismissed the union’s policy grievance and upheld a mandatory COVID-19 vaccination policy on the grounds that it was reasonable and did not breach the collective agreement. Paragon employs nearly 4,400 security guards assigned to almost 450 client sites throughout the province.
The arbitrator affirmed that Paragon has the duty to protect the health and safety of its employees pursuant to the Occupational Health and Safety Act which provides that an employer must take “every precaution reasonable in the circumstances for protection of its worker.” Paragon, in implementing the mandatory vaccination policy, had taken “every precaution reasonable” to satisfy that duty, he said.
The arbitrator also determined that the mandatory vaccination policy was compliant with the Ontario Human Rights Code. He said that the policy strikes a balance to respect the unvaccinated employees’ rights, while respecting a safe workplace for its employees, clients, and the public.
In Power Workers’ Union v. Electrical Safety Authority, Arbitrator J. Stout partially upheld a grievance brought by the PWU because of the Electrical Safety Authority’s introduction of a new COVID-19 mandatory vaccination policy that no longer allowed employees to choose between obtaining full COVID-19 vaccination or submitting to regular antigen testing. Most Electrical Safety Authority employees were also working remotely at the time the mandatory COVID-19 vaccination policy was implemented.
Labour arbitrators have been more likely to uphold an employer’s COVID-19 vaccination policy where the policy was implemented because of an operational necessity or where a vaccine requirement was supported by clear language in the collective agreement. On the other hand, where most employees worked from home and there was insufficient evidence that their unvaccinated status caused any major problems or interference with the employer’s business, a mandatory vaccination policy was found to be unreasonable.
We understand this situation is frustrating for many of you. As circumstances involving COVID-19 remain fluid and ever evolving, we will continue to monitor the decisions of arbitrators and human rights tribunals elsewhere as the grievances we have filed continue to work their way through the system.
If you have concerns about your employer’s COVID-19 vaccine policy, please reach out to the Members Resource Centre at 1-800-232-7284 and they will connect you with your Membership Services Officer.