Mandatory vaccination policy found to be reasonable

In a March 17 arbitration award, yet another Ontario arbitrator found a mandatory vaccination policy to be reasonable. In Unifor Local 973 and Coca-Cola Canada Bolling Limited the arbitrator reviewed the significant impact that COVID-19 had had on the workplace including the death of two employees and 13% of employees testing positive for COVID-19 in the month of January 2022 alone. The spread of the disease had resulted in two of the facilities being fully closed and two partially closed for periods of time.  The rate of hospitalization of company employees had increased six fold from 2020 – 2021. In response to the pandemic, the Company instituted a nation wide COVID-19 vaccination policy which required employees to be fully vaccinated with two doses of an approved vaccine by January 1, 2022, or face workplace consequences which might include disciplinary consequences including termination. The policy provided accommodation consistent with the requirements of human rights legislation and was scheduled for review on April 1, 2022.

In finding that the mandatory vaccination policy established a reasonable balance between an employee’s interest to privacy and bodily integrity and the employer’s interest in maintaining the health and safety of the workplace, the arbitrator reviewed the general context in which the policy was enacted, noting:

“…The Policy is a response to a global health pandemic that has so far claimed 6 million lives worldwide. It makes mandatory the use of vaccines, that have proven to be safe and effective at combatting not only the transmission of the virus, but also at providing significantly greater protection from serious illness, hospitalization, and death for those individuals who are fully vaccinated. There is no question that it is extraordinary for an employer to enact a workplace rule or policy that impacts an employee’s right to privacy and bodily integrity, but there can be no dispute that the global COVID-19 pandemic is an extraordinary health challenge. Not only are employers obliged to ensure that the health and safety of an employee is always protected, under s. 25(2)(h) of the Occupational Health and Safety Act, employers are statutorily required to ‘take every precaution reasonable in the circumstances for the protection of a worker’.”

The factors specific to the workplace considered by the arbitrator included that the employees must attend the workplace to do their job, most were working in close quarters, most of the customers have their own vaccination policies and COVID-19 has had a significant impact on the Company. In addition the Company had a variety of other protocols in place to reduce the threat posed by COVID 19 and despite these measures the disease was continuing to spread at an alarming rate at the Company. The Arbitrator provided for a period to at least April 4, 2022 to allow non compliant employees to become compliant with the policy prior to facing disciplinary measures.

This decision is consistent with the decisions that preceded it. With the now changing face of the pandemic, and what appears to be a move to an endemic, it will be interesting to watch how arbitrators and our courts balance the interests of individuals to privacy and bodily integrity with the employer’s requirement to maintain the health and safety of the workplace.

Still have questions about vaccination policies? Contact Rose Keith, QC at [email protected] or anyone else from our team listed on the Authors page.