As arbitral decisions relating to the reasonableness of mandatory coronavirus vaccination policies emerge, employers have clearly gained the upper hand.

“The overall box score shows that, for the most part, arbitrators have upheld mandatory vaccination policies as reasonable,” says George Vassos, a labour and employment partner at Littler Mendelson. “In the most recent case, involving the Toronto District School Board, the arbitrator also found that these policies did not violate the Charter of Rights — and that was another big step forward for employers.”

Benefits Canada reviewed 12 cases involving mandatory vaccination policies — 10 from Ontario and one each from Alberta and B.C. In only two cases, both from Ontario, did arbitrators find employers’ policies to be unreasonable.

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Both cases in which arbitrators struck down mandatory vaccination policies revolved around unionized workplaces. In the first case, involving a long-term care home, the arbitrator ruled that termination as a consequence of non-compliance violated the collective agreement; in the second, involving the Electrical Safety Authority, the arbitrator decided a policy that didn’t have a testing alternative was unreasonable.

“By and large, arbitrators have ruled in favour of policies that put employees on a leave of absence and offer a testing alternative,” says Gradin Tyler, a labour and employment partner at Mathews Dinsdale & Clark. “The outliers tend to be cases that have a unique aspect that arbitrators find objectionable — and termination is one of these aspects.”

Despite the fulsome weight of authority upholding vaccination policies, Vassos cautions that employers don’t have carte blanche in this arena. “It’s always a contextual analysis, which is not surprising because COVID has been so fluid. This means that employers have to consider the working environment, the employee demographics and any other factors relevant to risk assessments in the workplace.”

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For example, employers should consider distinguishing between employees who work indoors at the workplace, those who work outdoors and those who work remotely.

Above all, mandatory vaccination policies must be reasonable; they have to be clear and equivocal, with the policies and their consequences including the range of discipline brought to the attention of all employees; and they must be consistent and devoid of favouritism.

In the unionized context, the policies must not offend the collective agreement. Where no collective agreement exists, the contextual analysis starts with employers’ obligations under occupational health and safety legislation.

“The question then becomes how these obligations stack up against human rights considerations, bodily integrity considerations, privacy considerations and exemptions for medical reasons,” says Vassos. “If those factors are not weighed in, the policy will not pass the reasonableness threshold.”

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While arbitrators have been knee-deep in mandatory vaccination cases involving collective agreements, wrongful dismissal cases arising from non-unionized workplaces haven’t yet reached the courts.

“When they do, we can expect judges to recognize the body of expertise that is unique to arbitrators and will likely apply a similar contextual analysis in deciding whether just cause for termination exists,” says Vassos.

Overall, then, the future bodes well for employers. “They’re pretty happy with the trend so far,” he says.