It has all been guesswork — until now.
Some lawyers have been trolling for clients, boldly advertising that anyone fired for refusing to vaccinate has an excellent case for wrongful dismissal. I have made clear in these pages that such representations were imprudent, in fact, negligent, and that such lawyers risked potentially being sued.
My advice has been the opposite. If employees worked in physical proximity to others and the employer imposed a mandatory vaccination policy, failing to adhere was very likely cause for discharge.
I have advised employees who work closely with others and were terminated for refusing to vaccinate that, if they wished to sue, issue a claim but do nothing more until the issue was decided by the courts so as not to squander legal fees on a likely fruitless case.
While I believed that both judges and arbitrators would find refusing to vaccinate to be cause when an employer requires it, I was particularly confident of the judiciary arriving at that conclusion since arbitrators are chosen by both unions and companies and often try to find a middle ground and rely on a slightly different law.
Subject to medical and religious exemptions, there is no duty to accommodate the unvaccinated. And those two exemptions are so narrow as to impact perhaps 0.001 per cent of Canadians. I devoted a previous column to my underlying reasons but still cautioned that, while it was my opinion, there had been no case on point yet.
Now there are two.
The first was an arbitration of a grievance filed less than two months earlier (compare that to the time it takes to go to court).
In a decision on Tuesday, Arbitrator Fred von Veh came to the conclusions I had and for reasons that I had delineated.
It put paid to all of the nonsensical assertions, masqueraded as “legal” arguments by anti-vaxxers, about mandatory workplace vaccinations violating the Charter of Rights, human rights legislation or, most ludicrously, the Nuremberg Convention dealing with treatment of prisoners of war.
The case involved unionized security guards of Ontario-based Paragon Protection Ltd., which had a vaccination policy.
The ruling can be a roadmap for all employers so I will cite it in detail:
1. Staff must be vaccinated by October 31 with the first dose by September 30, 2021. All staff not fully vaccinated were required to schedule appointments immediately, which would be accommodated during working hours if that is when they are scheduled;
2. All staff were required to provide signed declarations confirming that they had received two doses by October 17;
3. Fully vaccinated is interpreted as occurring 14 days after the required doses;
4. The company had the right to require proof of vaccination status and did not have to accept oral attestations;
5. The policy itself could be amended as public health guidelines change;
6. In addition to being vaccinated, all staff had to wear masks in the workplace including washrooms;
7. The company will maintain vaccination disclosure information consistent with privacy legislation, but used only to the extent required to implement the policy to minimize privacy concerns;
8. No non-essential travel outside of Canada is permitted.
9. The only exceptions would be medical and creed i.e. religious exemptions. No one else would be accommodated.
In analyzing medical exemptions, Arbitrator von Veh quoted Ontario’s Chief Medical Officer, Dr. Kieran Moore, that the narrow list of legitimate medical exemptions was, mainly “severe allergic reactions and inflammation in or around the heart, meaning just one to five in 100,000 Ontarians would qualify.”
In analyzing religious exemptions, the arbitrator cited the Ontario Human Rights Commission’s statement of Sept. 22, stating that “Personal preferences or singular beliefs do not amount to a creed for the purposes of the (Human Rights) Code,” and that even if the exemption request is creed based “the duty to accommodate does not necessarily require that they be excepted from vaccine mandates and that the duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship — such as during a pandemic.”
In applying for a medical or religious exemption, this policy required an accompanying letter setting out the basis for the exemption request. And the company reserved the right to request further information from the doctor or religious leader, and the employee authorizes the company to do so by signing a form.
Significantly, the form the Paragon employees signed certifies that all information is accurate and the employees understand that any false or misleading information is subject to disciplinary action, including dismissal, and that incomplete forms will not be considered.
The policy stated that, even if an employee has a valid creed or medical exemption, they could still be placed on an unpaid leave of absence, placed in a different site at that site’s wage rate or participate in further testing requirements different than other staff. Staff could also be accommodated during the vaccination process until 14 days after being fully vaccinated, at which point the accommodation would cease.
In addition, everyone with a valid exemption had to submit to weekly antigen testing, notably at their own time and expense.Finally, the policy made clear that anyone providing false information or abusing or violating the policy was subject to discipline up to termination for cause.In short, an aggressive policy covering all the bases.The union argued older cases involving a policy at St. Michael’s Hospital in 2014, requiring nurses to wear masks if they were not vaccinated from the flu.
As I have written previously, that case has little precedential value because the flu vaccine at the time had little reliability and, as Arbitrator William Kaplan then said: “If a better vaccine was available, the entire matter might be revisited.”This compares to the COVID-19 vaccine with effectiveness of over 95 per cent. Arbitrator von Veh noted that COVID-19 was dramatically more contagious and deadly than the seasonal flu and that old decision did not deal with the pandemic conditions currently existing.
This collective agreement contained a provision requiring vaccinations for those employees assigned to a customer site requiring vaccinations, which applied to many but not all sites. Although this provision was unique to this case and lawyers will try to differentiate other cases on that basis, the arbitrator appeared to give little, although some, weight to it in arriving at his conclusion.
In finding this policy to be enforceable, the Arbitrator relied on the provisions of the Occupational Health and Safety Act, requiring employers to take ‘”every precaution reasonable… for protecting its workers.”It found that implementing the vaccination policy satisfied that obligation and that, “the personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace the available scientific considerations and that this policy qualified as a reasonable rule and regulation.”
The second case, which came out Thursday was from arbitrator John Stout who issued his decision right after the first ruling. He took the middle-ground approach arbitrators often do.
He came to the opposite conclusion and distinguished his award relating to Ontario-based Electrical Safety Authority’s unionized employees from arbitrator von Veh’s award, stating that, unlike in his case, the Paragon employees worked at client sites.He found that, in each case, personal rights to bodily integrity and privacy should be balanced with the actual risk to health and safety, employee rights to work in a safe workplace and the employer’s obligations under the Occupational Health and Safety Act.
He found that ESA had moved from regular testings to those unvaccinated to mandatory vaccination without any discernible risk or reason requiring that, while acknowledging that testing is less effective than vaccination.But he found ESA had produced no evidence of any need for this change and no precipitating event or concerns which led to it. He noted that vaccinated employees only could be used when attending third-party premises without inconvenience as most employees were already vaccinated.
Although in light of the lack of evidence showing a need for such a policy, he struck down ESA’s policy permitting dismissal or unpaid leave for the unvaccinated. He added that if a need or risk subsequently developed, such that testing no longer provided sufficient protection, he would permit the employer to place the unvaccinated on unpaid leave until they were.
He concluded: “This award should not be taken as a vindication for those who choose not to get vaccinated. Those individuals are misguided and acting against their own and society’s best interests. They may also be placing their ability to earn a living in jeopardy. These individuals should not construe this award as a victory.”
The lesson from these two cases: Come armed with evidence and cogent reasons why mandatory vaccinations are necessary in the context of your workplace. ESA should have had that at the ready. If they did, it was clear they would have succeeded.
The battle lines are drawn with more decisions ahead.