Employers across the world are discussing the risks and merits of imposing mandatory vaccination policies in response to the COVID-19 pandemic. While there is still no certainty about the enforceability of these policies, decisions from labour arbitrators give us some idea of the principles to be applied in unionized workplaces.
My colleague, Jennifer Costin has written about the general issues here, but this will be a deeper dive into the question specifically for unionized employers. As Jennifer discussed, arbitrators have split on the question of mandatory Vaccination or Mask (“VOM”) policies for influenza. Those who found that mandatory policies contravened the collective agreement did so on facts which included that: medical officers of health had not mandated a policy; there was a lack of consensus on the value of vaccination; and there was “insufficient, inadequate and unpersuasive” evidence for masking.
I would argue that none of those findings should hold up to scrutiny where COVID-19 is concerned. For example, here are some of the comments in the most recent case in which a VOM policy was found to contravene the Collective Agreement:1
There is no shortage of questions requiring answers, but two of the principal ones are the extent to which unvaccinated [health care workers] pose a risk to patients – a risk of transmitting influenza especially when they are asymptomatic – and whether masking appreciably reduces that risk. …
On balance, and after the most thorough review of all of the testimony, studies and reports tendered in this proceeding, and with the greatest of respect to an accomplished and respected researcher and physician, I cannot conclude that the evidence comes even close to establishing that masking may be as “effective as vaccine in protecting patients from influenza.”…
On balance, I am persuaded by the evidence and accept the conclusion of the experts that there is, indeed, scant evidence of asymptomatic nosocomial influenza transmission. …
One day, an influenza vaccine like MMR may be developed, one that is close to 100% effective. To paraphrase Dr. Gardam, if a better vaccine and more robust literature about influenza-specific patient outcomes were available, the entire matter might be appropriately revisited.
Any regular reader of (credible) news coverage of the pandemic can easily pick holes in those assertions as they might relate to COVID-19. So what principles will arbitrators rely on when (not if) these policies become the subject of grievance arbitration hearings?
Employer policies are reviewed by arbitrators through the lens of “reasonableness”. The case law has been set out in some detail in a recent decision2 in which the arbitrator quotes the longstanding KVP test as it was endorsed by the Supreme Court of Canada in 20133:
[A]ny rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable. …
Determining reasonableness requires labour arbitrators to apply their labour relations expertise, consider all of the surrounding circumstances, and determine whether the employer’s policy strikes a reasonable balance. Assessing the reasonableness of an employer’s policy can include assessing such things as the nature of the employer’s interests, any less intrusive means available to address the employer’s concerns, and the policy’s impact on employees.
In a very recent (December 2020) case addressing an employer’s right to require health care workers to undergo regular COVID-19 tests in a retirement home connected to a long-term care facility,4 the arbitrator relied on the KVP test to uphold the policy:
KVP holds that a rule introduced by the employer without the Union’s assent will give rise to discipline only if the rule meets the following criteria:
1. it is consistent with the collective agreement;
2. it is reasonable;
3. it is clear and unequivocal;
4. it was brought to the attention of the employee(s) affected before the employer attempts to act on it;
5. where the rule is invoked to justify discharge, the employee was notified that a breach of the rule could result in discharge and;
6. the employer has enforced the rule consistently since its introduction.
It was undisputed that the policy met criteria 3 to 6. However, the Union argued that it was unreasonable; that submitting to a nasal swab contravened the Supreme Court’s observation in Irving Pulp & Paper that “the use of a person’s body without his consent to obtain information about him invades an area of personal privacy essential to the maintenance of human dignity. … seizure of bodily samples is highly intrusive and, as this Court has often reaffirmed, it is subject to stringent standards and safeguards to meet constitutional requirements.” The arbitrator acknowledged that “certainly, having a swab stuck up your nose” is both an intrusion on privacy and a breach of dignity, but still upheld the policy, saying:
In my view, when one weighs the intrusiveness of the test: a swab up your nose every fourteen days, against the problem to be addressed – preventing the spread of COVID in the Home, the policy is a reasonable one. While the Home had not had an outbreak, I agree entirely with the Employer that, given the seriousness of an outbreak, waiting to act until that happens is not a reasonable option.
I would say something similar to the … [union’s] submission that the policy would be reasonable or, at least, more reasonable if the test was only triggered by an employee being symptomatic. Anthony Fauci had this to say about that:
“If you just test people who are symptomatic, you’re going to miss a very large contingent of the spread of the infection in the community.“
The arbitration cases cited here are from health care settings and we have little direction on what might happen in unionized workplaces such as manufacturing, food production, etc. if employers try to implement mandatory vaccination policies. Assuming the KVP analysis will be relied on, employers can quite easily meet criteria 3 to 6. The questions remaining to be asked will then include:
1. Is there anything applicable in the collective agreement? How strong is the management rights clause?
2. Is the policy reasonable?
(a) What is the level of employees’ required contact with others in the workplace, i.e. number of contacts?
(b) What is the level of vulnerability of the individuals the employee will contact?
(c)Has the workplace already suffered an outbreak?
(d)What alternatives exist – can employees wear masks for their entire shifts? Can they maintain the necessary physical distancing? Is there sufficient space/fresh air for coffee/lunch breaks? how good is the ventilation system in the workplace?
(e)How effective is the vaccine v. the efficacy of the alternatives?
My assessment is that the answers to 2(a) and (b) above will be the distinguishing factors in future case law arising from health care, long-term care and shared living (retirement homes, group homes, etc.) settings, where I expect to see arbitrators upholding an employer’s ability to impose mandatory vaccinations.5 In other settings, I expect the answers to 2(c) and (d) may carry more weight, as it may be possible to show that coworkers and the public can be protected by less intrusive means. The answer to 2(e) seems clear right now – we’re told that COVID-19 vaccines are highly effective – but of course, science may require us to revisit this as we learn more about the virus, new variants, the staying power of the immunity vaccines provide, and so on.
As has so often been said over the past year, this situation is unprecedented so there are no black-and-white answers. All we know is that COVID-19 is keeping labour lawyers on our toes …
1 St. Michael’s Hospital v ONA, 2018 CanLII 82519 (ON LA) (Kaplan).
2 Humber River Hospital v OPSEU, 2020 CanLII 70470 (ON LA) (Stout).
3 Irving Pulp & Paper Ltd. v CEP, 2013 SCC 34 (CanLII) (“Irving Pulp & Paper”).
4 Caressant Care v CLAC, 2020 CanLII 100531 (ON LA) (Randall).
5 Subject, as always, to any human rights issues, such as allergies to ingredients in the vaccine, etc.