November 10, 2021
In an arbitration that provides guidance on the enforceability of mandatory vaccination policies, a Policy Grievance by the United Food and Commercial Workers Union Local 333 (UFCW) against employer Paragon Security (Paragon), has been dismissed by the Arbitrator.
The grievance, filed September 13, was in response to Paragon initiating a mandatory Vaccination Policy on that date.
Background
Paragon provides security staffing for a wide range of clients and the Policy required all employees, including management and supervisors, to be fully vaccinated by October 31, 2021. One reason for the introduction of the Policy was that a majority of Paragon’s clients were requiring Paragon employees on their sites to be vaccinated.
The Vaccination Policy was distributed to all employees and available online, and included an Exemption Policy and form to accommodate Human Rights Code exemption requests on a Health or Creed/Religious basis.
The Union asserted that the policy was unreasonable and in violation of the collective agreement, and further asserted that the policy violates the Ontario Human Rights Code(OHRC).
The Paragon position outlined multiple points:
- the majority of the Company’s clients had implemented their own mandatory vaccination policies for all staff on site, including contract employees, which would encompass Paragon security staff.
- Paragon clients who had not yet implemented mandatory vaccination policies had communicated that such policies were forthcoming.
- many Paragon employees had raised concerns about working with other site security team members who were not vaccinated
The Company asserted that it had no choice other than to implement the policy as an operational necessity to service clients, and that the policy was also necessary to maintain a safe and healthy work environment for ‘our employers, clients and their staff, and the public we serve’.
The Company denied breaching the OHRC, citing the Exemption Policy.
Collective Agreement
The Union and Company are acting under a collective agreement which became effective December 2018 and expires December 2022.
Paragon has among its clients, health care providers, and Article 24 of the 2018 agreement is prescient, stating that “If an employee is assigned to a site where specific vaccination and or inoculation is required by law or where the conditions of contractors having access to the site stipulates such requirement, the employee must agree to receive such vaccination or inoculation.”
The Article also stipulates that the cost of the procedure will be borne by the Company and that employees required to be vaccinated or inoculated on their own time shall be paid in accordance with the call in provision of the agreement.
Lastly, the Article states that: “Where an employee refuses such vaccination or inoculation for any reason the Company shall reassign the employee as per the relevant provisions of this agreement.”
Submissions
Union Submissions
The Union submitted that “the rush to implement vaccine policies are unfair to our members. Our members are concerned about incurring additional health issues resulting from vaccinations.”
The Union referenced the Health Care Consent Act 1996 in regards to members releasing personal medical information and the provision set out in Section 10 (1) of the Act: no treatment without consent.
It further suggested that the Company vaccination policy was unreasonable because it is “do it or else” – the “else” being removed from a job site and possibly being accommodated for work elsewhere or being placed on an unpaid leave of absence.
The Union also referenced a leading arbitration decision in KVP Co. v. Lumber and Sawmill Workers’ Union 16 LAC 73, submitting that the Company’s COVID-19 Vaccination Policy is unreasonable and not in conformity with the principle for the introduction of rules by management, set out in the judgment:
“A rule unilaterally introduced by the company, and not subsequently agreed to by the union must satisfy the following requisites:
- It must not be inconsistent with the collective agreement
- It must not be unreasonable
- It must be clear and unequivocal
- It must be brought to the attention of the employer affected before the company can act on it.
- The employer 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 the discharge.
- Such rule should have been consistently enforced by the company from the time it was introduced.”
The Union also relied on a 2018 arbitration award re: St Michael’s Hospital and the Ontario Hospital Association and the Ontario Nurses Association. This award concerned the reasonableness of a Vaccinate, or Mask Policy introduced by the Hospital in 2014 for the 2014-2015 flu season, in which Health Care Workers who had not received the annual influenza were required to wear a surgical mask, or procedural mask, when in the presence of patients.
Company Submissions
The Company submitted that its COVID-19 Vaccination Policy is reasonable and enforceable and is consistent with the provisions of Article 24.05 in the collective agreement.
It submitted that it has a duty and responsibility pursuant to the Occupational Health and Safety Act to protect the health and safety of its employees, including the duty to prevent COVID-19 infection.
It noted that nothing in the Company policy forces security guards to be vaccinated. Employees can apply for an exemption from the Policy under legitimate grounds and nothing in the Policy violates the OHRC.
Addressing the Heath Care Consent Act, the Company submitted that it has no relevance to the matters being adjudicated, as the Company is not a ‘health care practitioner’ as defined in the Act; and in any event the Policy does not require its employees to be vaccinated without their consent.
The Company submitted that it has completely addressed and satisfied the rules set out in the KVP Award.
In regards to the St. Michael’s Hospital Award, the Company submitted that the matter is three years old, pertains to influenza and is not based on up to date science applicable under current pandemic conditions.
Award
The Arbitrator found for the Company in all instances, and dismissed the Policy Grievance, suggesting however that the Company’s COVID-19 Vaccination Policy be amended so that Staff members with an accepted medical or creed/religion basis have the option to regular and verified rapid antigen testing at their own time and expense.
As I have advised previously, the medical conditions for exemption from vaccination are clearly set out by the government of Ontario and the OHRC guidance is that:
- The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.
- While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
While Paragon is an exceptional company in that it already has a vaccination policy within its current collective agreement, the provisions of that policy provide good guidance for all employer COVID-19 vaccination policies, namely:
- clear communication of the policy
- ready and easy employee access to the policy and
- exemptions that adhere to government medical and OHRC creed/religion guidelines
I hope you find this information helpful. Please contact me with assistance working through your employment and labour law matters.