Recently, an alarming number of employers have announced or speculated about a so-called “mandatory vaccination” policy. Despite Premier Doug Ford categorically ruling out vaccine passports last month, Ontario is now said to be introducing mandatory vaccination in education and certain health-care workplaces. This is yet another example of an inconsistent policy approach that the government has adopted throughout the entire pandemic, adding to the uncertainty, and exacerbating unjustified infringements on labour rights and freedoms.
Although these policies do not legitimize physically forcing people to “get a jab”, they create a framework of rules that effectively prevent employees from being able to work, unless they are vaccinated. Some policies may require employees to disclose their vaccination status, some threaten to discipline unvaccinated employees or put such employees on an unpaid leave.
We, at Watson Labour Law, have consistently maintained our firm position that such policies constitute a significant intrusion into unions’ hard-earned rights and should not be allowed.
In this blog we discuss whether employers can legally introduce such policies and the ways the unions can fight against them.
WHAT SHOULD UNIONS DO TO FIGHT AND PROTECT THEIR RIGHTS?
We recommend that unions take the following steps to challenge the introduction of mandatory vaccination policies:
- Object in writing to any vaccination policies that employers might unilaterally introduce. Feel free to reach out to us at Watson Labour Law for our template notice of objection letter re unilaterally introduced policies.
- If the policy has already been introduced, file a policy grievance to protect your members’ rights. Feel free to reach out to us at Watson Labour Law if you want a legal opinion about the relative merits of exercising a right to refuse and/or refusal to comply. Also consider filing individual grievances based on potential infringements on human rights, privacy rights or other protections under the collective agreement,
- Lobby the government on the issue. Feel free to reach out to us at Watson Labour Law if you’d like assistance in filing submissions and/or starting a campaign on behalf of your union.
- Keep track of recent legislation changes with respect to mandatory vaccinations in different workplaces, and
- Bargain for anti-vaccination rights and stricter medical disclosure protections in the collective agreement.
HOW EMPLOYERS CAN ATTEMPT TO INTRODUCE MANDATORY VACCINATION
Employers may rely on their obligation to ensure the safety of the workplace and their discretion to exercise managerial rights as a means to implement vaccination policies.
However, there are important limits to employer’s managerial powers. Employers’ discretion must be exercised in good faith and be reasonably necessary for reasons related to safety.[2] In addition, unilaterally imposed policies must satisfy the following requirements:
- Be consistent with the collective agreement,
- Be reasonable,
- Be clear and unequivocal,
- Be brought to the attention of the employee affected before the company can act on it,
- Employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge, and
- Be consistently enforced by the company from the time it was introduced.
WHY EMPLOYERS SHOULD NOT BE ALLOWED TO IMPOSE VACCINATION POLICIES
The union may potentially object to mandatory vaccination policies on several grounds.
It is not reasonable. In order to assess the reasonableness of the policy, arbitrators often look at the balance between employers’ interests in ensuring public health and workplace safety, the cost to an employee, any less intrusive means available, presence of a punitive intent. Moreover, the reasonableness requirement means that the introduced policy must be founded on objective evidence of its effectiveness.
Thus, the union may consider the following questions to assess the reasonableness of a vaccination policy:
- Type of workplace. Does the workplace involve close contact with high-risk populations (i.e. medical establishments or retirement residences)? If not, what is the actual safety risk of the workplace? Does the risk of infection outweigh the cost to employees? Virtually, all existing case law, where a vaccination policy was upheld, involved work with high-risk populations. Thus, introducing similar requirements in other types of workplaces may not be appropriate, as less intrusive measures may be sufficient.
- Intrusiveness. Case law has recognized that policies requiring intrusive measures (such as taking a bodily sample) are more likely to be struck down than policies that entail less intrusive steps. Given that mandatory vaccination policies are highly intrusive, unions may argue that their introduction is not reasonably necessary to ensure workplace safety, since other protective measures may work just as well and not intrude on employees’ rights and freedoms. Unfortunately, however, in COVID-19 context, there has already been at least one arbitration decision, where the mandatory bi-weekly COVID-19 testing, despite its intrusive nature, has been held to be reasonable, because of the danger of COVID-19.
- Lack of objective evidence. COVID-19 vaccines are still not entirely researched, their long-term consequences, impact on different population groups and long-term effectiveness against transmitting the virus and/or mutating strains remain unclear. In fact, the possibility of a 3rd vaccine has already been raised. Coupled with less intrusive measures of protection available, vaccination policies arguably lack the required objective basis to be introduced as a mandatory policy.
- Punitive and coercive intent. Although no case law regarding COVID-19 mandatory vaccination policies is available at the moment, unions may draw limited assistance from flu vaccination cases. Arbitrators have struck down several Vaccinate or Mask policies, because there was insufficient scientific evidence that masks were effective in preventing the transmission of the flu. Therefore, the requirement for unvaccinated employees to wear a mask was not a reasonable measure, but a way to force employees to vaccinate. The coercive element of these policies rendered Vaccinate or Mask policies void. Based on these decisions, unions may argue that any policy that requires vaccination under the threat of discipline or some other measure is not reasonable.
It is not consistent with the collective agreement. Some collective agreements contain specific anti-vaccination language, based on which the employer will be precluded from introducing mandatory vaccination. If your collective agreement does not contain such language, we recommend considering bargaining for it in the next round of collective bargaining.
It constitutes a human rights violation. The Ontario Human Rights Code protects employees from discrimination based on several grounds, including age, creed, and disability. Thus, the employer cannot introduce a policy that excludes employees who cannot get a vaccine due to an illness or because of their religious beliefs, unless they can prove that this policy is “reasonable and bona fide in the circumstances.” In addition, the employer would have to provide an accommodation for the unvaccinated employees to the point of undue hardship, “considering the cost, outside sources of funding, if any, and health and safety requirements, if any.” Given that masks and social distancing are not costly measures, employers will arguably not be able to justify mandatory vaccination policies for groups of people who fall under the human rights exceptions.
It violates privacy rights. In Ontario medical records are private. Thus, they can be disclosed only in limited circumstances, where the privacy concerns are outweighed by the employer’s interest in the disclosure of medical information. Note, however, in one arbitration case in British Columbia, the Arbitrator upheld a policy, which required medical personnel to disclose their flu vaccination status, stating that the Employer’s interest in patient safety outweighed the privacy concerns, especially because the required disclosure was not “wide-ranging” but only limited to “annual disclosure of their immunization status.” In addition, some collective agreements contain specific provisions, limiting the extent of medical disclosure that the employer may request from an employee.
In light of this, in order to determine if the employer is justified in infringing employee’s privacy rights, the union should carefully examine their collective agreement, weigh the specific requirements of the introduced policy, assess the extent of its intrusiveness and weigh the competing interests at stake.
It is a Charter violation. If your employer is a public entity, the union could argue that the policy violates employees’ Charter rights, particularly security of person under section 7 of the Canadian Charter of Rights and Freedoms, which protects a person from state interference with their bodily integrity. There has been at least one decision, where forced vaccination under the threat of disciplinary proceedings have been found to have infringed security of person. However, such violations of the Charter rights have usually been saved under section 1 of the Charter as a justified limit of the rights in a free and democratic society, given vaccination’s public health objectives.
PROOF OF VACCINATION IN PUBLIC PLACES: RESTAURANTS, STORES, UNIVERSITIES.
Employers are now considering mandatory vaccination policies not only for their employees but even for their customers. There has been discussion about whether restaurants and stores can refuse entry to unvaccinated customers. Several universities have recently announced that only vaccinated students will be allowed onto universities’ premises.
These measures are subject to objections similar to the ones listed above. Most notably, these policies have to allow for human rights exceptions, including based on creed, age, nationality and disability.
In the context of service establishments, such as restaurants, bars and stores this particular requirement represents significant difficulties from a practical standpoint. It is not clear how, for example, restaurants or stores would in practice differentiate between customers who refused to vaccinate based on medical exceptions and customers who refused based on their personal preference. Arguably, customers could rely on privacy protections to refuse to disclose medical documentation that would support their reason for not getting vaccinated. Similarly, it is unlikely that the stores are prepared to evaluate whether the religious belief of each customer truly justifies the exemption from vaccination. An argument can be made that a much more proportionate measure is to continue to require masks and measures of social distancing, based on official recommendations of the province, depending on the vaccination rates.
To conclude, these latest developments show that unions and their members should be extra vigilant about any COVID-19-related policies that the employers announce or attempt to introduce, as well as the legislation changes in this area.
Please contact us for personalized assistance to learn how your union can challenge the introduction or implementation of vaccination policies!
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