Following a busy fall full of COVID-19 vaccination policy rollouts and corresponding challenges to those policies based on the grounds of reasonableness, the exercise of management rights, employees' privacy concerns, and alignment with the respective collective agreements, the OBA’s Labour and Employment Law Section’s January program, “Enforcing COVID-19 Vaccination Policies: The Latest Word from Adjudicators” provided much-needed guidance and clarity.

Over the course of the discussion moderated by program chair Inna Koldorf, a partner with Miller Thomson's Labour and Employment Law group, the expert panelists, including Esi Codjoe, Turnpenney Milne LLP, Mathias Link, Fasken Martineau DuMoulin LLP, Aleisha Stevens, CaleyWray, and Frederick R. von Veh, Q.C., Arbitration Services, Ltd., came to an overwhelming consensus of upholding the employers' policies, but it came with a caution: the devil is in the details.

A balancing exercise

Several factors led the arbitrators to make awards favouring the employers' vaccination policies. Each arbitrator had to go through the balancing exercise of competing values and conditions of the KVP test against the language of the respective collective agreements. This balancing exercise, involved in the legal test, proved to be a delicate matter depending on the factual circumstances of each case. The test comes from Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. (1965), 16 L.A.C. 73 (Robinson), which sets out the scope of management's unilateral rulemaking authority under a collective agreement, and currently remains good law in Ontario. 

Frederick R. von Veh, Q.C., underscored the paramountcy of the collective agreement, the language of the articles contained therein, the importance of keeping workplaces safe and respect for the members of the public when it comes to vaccinations and vaccinations policies. Regarding the vaccination exemptions, Arbitrator von Veh noted that, "religion and creed are much more difficult and must be looked at carefully, but again it is not a black and white issue.”

Red flags

Aleisha Stevens identified four categories of red flags from the union perspective when scrutinizing the employers' policies:

• One-size fits all approach 
• The degree of intrusion into a person's privacy
• No system in place for gathering, accessing, saving and purging private medical data
• Absence of accommodation provisions 

In addition to the considerations mentioned earlier, these red flags are things employers should consider when drafting their mandatory vaccination policies.

From the employer's perspective, Mathias Link discussed the facts of a recent award, where a union grieved a vaccination policy based on privacy and the unreasonable exercise of management rights. The federal government mandate complicated the grievance and the KVP analysis. In the end, the policy was upheld. Notably, individual rights, such as the right to privacy, are not absolute. 

Enforceable policies: reasonable, clear and compliant with collective agreements

Based on the information provided in the program, I think the underlying issue in each case was whether the vaccination policy as drafted would withstand the scrutiny of arbitrators and judges alike. In her presentation, Esi Codjoe highlighted the importance of drafting enforceable policies that are reasonable and compliant with the collective agreements, if in place. The relevant drafting considerations included the reasoning behind introducing the policy, the nature of the workplace, type of work, types of employees, who the organization clients are, compliance with the provisions of the collective agreement if a workplace is unionized, clarity and comprehensiveness of the policies as well as overarching human rights considerations. It is not an exhaustive list. In terms of human rights concerns, employers are called upon to recognize their vaccination policies' implications on the employees. For example, two prohibited grounds of discrimination – creed and disability – under the Ontario Human Rights Code, 1990, form the basis of exemptions.

While the entire world is trying to come out of the pandemic and get back to "normal", workplace vaccination policies will undoubtedly remain a lively topic in unionized and non-unionized work environments. Perhaps we will see many more mandatory vaccination policy challenges in the months to come. Given the wealth of knowledge that the panelists shared with the attendees, everyone who missed the program would benefit from viewing it even though they won't have a chance to ask questions directly.

About the author

Oksana Romanov is a 2L law student at the Lincoln Alexander School of Law. Oksana is the vice-president of research & innovation of the Labour and Employment Law Society at her law school. Concurrently, she is one of the student leaders with the Faculty of Arts Young Workers Right Hub. This summer, she will be completing her internship at Workly Law.