Employers Claim Early Edge in Litigation Battle Over Mandatory Vaccination

Union legal challenges to mandatory vaccination policies have failed in 3 of 4 cases.

Are mandatory vaccination policies legally enforceable?

Since the vaccination rollout began, human rights commissions across Canada have issued guidance reassuring employers that mandatory vaccination is legal as long as it’s vital safety to the safety of the particular workplace and necessary accommodations are made for the disabled and other protected groups. But while guidance is nice, HR directors understand that it’s the courts and arbitrators that will have the final say on this matter. And now courts and arbitrators have begun weighing in. There’ve been 4 cases in the past month, all but one of which went in the employer’s favour. Here’s a rundown of each case and what it means.

Nov. 9: Ontario Arbitrator Upholds Mandatory Vaccination

In the first ruling, an Ontario arbitrator upheld a mandatory vaccination policy covering 4,400 security guards working at 450 client establishments. Citing Ontario Human Rights Commission guidance and scientific information supporting vaccine effectiveness, the arbitrator found the policy valid and enforceable, especially given employers’ OHS duty to ensure a safe workplace [United Food and Commercial Workers Union, Local 333 v. Paragon Protection Ltd., November 9, 2021].  

Nov. 11: Ontario Arbitrator Rules Against Mandatory Vaccination

Two days after Paragon, the unions turned the table when another Ontario arbitrator ruled that the Electrical Safety Authority’s mandatory vaccination policy was unreasonable to the extent employees could be fired, disciplined or placed on unpaid leave for noncompliance. The employer, a non-profit responsible for electrical safety, couldn’t prove it had a real and demonstrated risk or business need justifying the policy’s strict enforcement provisions. There was never an outbreak in the workplace, most employees were vaccinated voluntarily and many worked remotely, the arbitrator reasoned [Electrical Safety Authority v. Power Workers’ Union, Grievance ESA-P-24, November 11, 2021].

Nov. 15: Québec Court Upholds Mandatory Vaccination

The third case involved a company that provides housekeeping services on a contract basis. When clients banned contractor workers from entering their buildings without proof of vaccination, the company imposed a mandatory vaccination policy on its own employees. The companies and unions asked the court for a declaration of whether the vaccination verification policies were legal. While conceding that the policies infringed on Charter privacy rights, the Québec court concluded that the policies were valid given the current COVID public health order [Union des employés et employés de service, Local 800 c Services ménagers Roy ltée., 2021 CanLII 114756 (QC SAT), November 15, 2021].

Dec. 2: Federal Court Tells Employees to Take Their Case to Arbitration

While technically a victory for the employer, the federal decision not to freeze the RCMP’s mandatory vaccination policy wasn’t a ruling on the merits. The case was brought by unvaccinated officers claiming the policy violated their constitutional rights asking for an interim injunction order blocking its enforcement pending resolution of the case. The federal court said no, not because the policy was legal but because it lacked jurisdiction, i.e., legal authority, to decide the case. This was essentially a collective bargaining dispute that had to go to labour arbitration. Granting the injunction would usurp the process for resolving labour grievances set out in the Canada Labour Code, the court concluded [Wojdan v. Canada (Attorney General), 2021 FC 1341 (CanLII), December 2, 2021].