Ontario’s public health laws in response to COVID-19 continue to evolve.  DSF has previously discussed the enforceability of mandatory vaccination policies in the workplace. This blog addresses the enforceability of mandatory masking policies introduced by employers now that Ontario law no longer requires masking in most settings.

Evolution of the Ontario Mask Mandate

On June 11, 2022, the Ontario mandatory masking requirement was lifted in public transit^[1] and most health care settings.  The province’s masking mandate has been gradually adjusted since the onset of the COVID-19 pandemic, becoming more relaxed as the volume of infections in Ontario has decreased. The significant changes to the mandate enacted on June 11 were perceived by many as the end of the mask mandate. However, individuals are still required to wear a mask in certain circumstances, such as in long-term care and retirement homes.  Hospitals, while no longer obligated by the province to require masking, may nonetheless elect to require masks to be worn in their facilities.  Indeed, many hospitals, such as Toronto’s University Health Network, have continued to require masking.

Masking Policies in the Workplace

Similar to hospitals, although not mandatory, private businesses may choose to have a masking policy in effect.  Under the Occupational Health and Safety Act (“OHSA”), employers are required to take every precaution reasonable in the circumstances for the protection of a worker.  This includes protection from “occupational illnesses”, such as COVID-19.  To ensure compliance with the OHSA, it continues to be prudent for employers to have a masking policy.  One possibility would be to require employees to wear a mask when walking through the common areas of the workplace but be permitted to remove their masks when working alone in their office.

Individuals who wish to continue masking are permitted to do so, even if their employer does not require it.  Employees who refuse to comply with their employer’s masking policy may be subjected to discipline.

Is Refusal to Abide by an Employer’s Masking Policy Just Cause for Termination?

Employers may terminate an employee at any time without cause, as long as they provide the terminated employee with all payments and entitlements in accordance with the Employment Standards Act, 2000, their employment contract and the common law.

If an employee can show that they cannot wear a mask for medical or religious reasons, they would be entitled to accommodation under the Ontario  Human Rights Code or the Accessibility for Ontarians with Disabilities Act.  In these instances, employers would have a duty to accommodate the employee up to the point of undue hardship, with regard to cost and health and safety issues.  However, to date, qualifying for such as accommodation has proved to be extremely difficult and this is likely to continue to be the case.

In Beaudin v Zale Canada Co. o/a Peoples Jewellers, 2021 AHRC 155, the Human Rights Tribunal of Alberta (“HRTA”) determined that a store’s choice to refuse service to a customer who refused to comply with its masking policy, even though at the time there was no public health requirement to wear a mask, did not amount to discrimination. In this instance, it was not disputed that the patron had a disability which prevented him from wearing a mask, but because the store offered alternatives such as shopping online (with free delivery) and curbside pick-up, and since the employer had good faith and legitimate health and safety reasons for introducing the policy, the HRTA dismissed the complaint.

There are other cases in which human rights tribunals have decided against individuals who refused to follow the mask policies of private businesses.[2]  In each of these cases, the tribunals concluded that the complainant was not entitled to an exemption from wearing a mask under the applicable human rights legislation.

Employers may consider providing alternatives, such as permitting employees to work remotely to avoid human rights complaints about the enforcement of a masking policy. However, as the British Columbia Human Rights Tribunal concluded in The Customer v The Store, 2021 BCHRT 39, “[t]he Code does not protect people who refuse to wear a mask as a matter of personal preference”.[3]

The above cases suggest that an employer will likely have a strong case if they choose to terminate an employee for cause and wilful misconduct for failure to comply with a masking policy.  However, if COVID-19 becomes less of a public health and workplace safety concern and case counts decrease, it will become more difficult for an employer to establish just cause and wilful misconduct when terminating an employee for failure to comply with a masking policy.  On the other hand, if a new variant and wave of the virus emerge and case counts increase, the employer’s case for cause and wilful misconduct, if an employee does not comply with its masking policy, will become strong again.

Ultimately, masking disputes in the workplace will depend on the facts and circumstances of each case and whether the masking policy is reasonable in the circumstances.

If you have any questions about mask mandates in the workplace or employment law generally, please contact Marty Rabinovitch at (416)-446-5826 or Marty.Rabinovitch@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Chloe Carr*

[1] With the exception of the TTC’s “Wheel-Trans” Service.

[2] See also: Szeles v Costco Wholesale Canada Ltd., 2021 AHRC 154; Rael v Cartwright Jewelers and another, 2021 BCHRT 106; Coelho v Lululemon Athletica Canada Inc., 2021 BCHRT 156; Ratchford v Creatures Pet Store, 2021 BCHRT 157.

[3] The Customer v The Store, 2021 BCHRT 39 at para 14.

Following the introduction of Infectious Disease Emergency Leave (“IDEL”) in Regulation 228/20 (the “Regulation”) passed May 29, 2020, pursuant to the Employment Standards Act, 2000 (“ESA”), the common law of constructive dismissal has been uncertain as a result of conflicting Ontario court decisions.

Background

The Regulation states that non-unionized employees who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on IDEL. As reflected in section 50.1 of the ESA, a temporary reduction or elimination of an employee’s work hours and/or wages due to COVID-19 does not constitute constructive dismissal during the “COVID-19 period”, which began (retroactively) on March 3, 2020, and is currently set to expire on July 30, 2022.

The Regulation has resulted in some confusion, since it prevents employees on IDEL from advancing a claim for constructive dismissal under the ESA, contrary to the well-established principle that an employer does not have an inherent common law right to temporarily lay off an employee – even if the employer complied with the layoff provisions of the ESA (the employer would need to include a lay-off provision in the employment contract).

Normally, in order for the common law to be altered by statute, there would need to be express language in the statute to that effect.  As stated expressly at section 8(1) of the ESA, “no civil remedy of an employee against his or her employer is affected by this Act”. The Regulation does not contain any language which would modify this section of the ESA, leaving many to wonder how the courts would interpret and apply the Regulation. In earlier blog posts, which can be found here and here, we too at DSF contemplated this uncertainty.

Coutinho v Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII) (“Coutinho”)

The question of whether the Regulation prevented an employee from advancing a claim for constructive dismissal at common law was first put before the court in Coutinho. The court ruled that while the Regulation prevented the employee from pursuing damages under the ESA, it did not prevent them from pursuing a claim for constructive dismissal at common law.

Thus the court determined that the Regulation did not impact an employee’s common law right to assert that a reduction in hours of work and/or wages constitutes a constructive dismissal, which would entitle the employee to wrongful dismissal damages.

For a more thorough discussion of this decision, please see our previous blog post here.

Taylor v Hanley Hospitality Inc., 2021 ONSC 3135 (“Taylor”)

The “certainty” provided by the court in Coutinho did not last long, however, following the conflicting decision of the Ontario Superior Court in Taylor. In contrast to the decision in Coutinho, the Court determined that an employee on IDEL under the Regulation had no right to claim constructive dismissal claim at common law.

Please see our previous blog post here for more details on this decision, and our blog post here to see our first analysis of the conflicting judgments.

Taylor v Hanley Hospitality Inc., 2022 ONCA 376

As anticipated, the Superior Court’s decision was appealed due to the inconsistencies between the rulings in Coutinho and Taylor. The Court of Appeal decision was expected to clarify the law in this regard, however, the decision released on May 12, 2022, ultimately did not do so.

The Court of Appeal overturned the trial judge’s decision on other, unrelated grounds

related to an erroneous granting of a Rule 21 motion under the Rules of Civil Procedure. Thus no determination was made on whether section 50.1 of the ESA overrides an employee’s common law right to assert constructive dismissal. The case and this question of law were sent back to the Superior Court to be re-adjudicated.

Current State of the Law: Employers Beware

For the time being, Coutinho and Fogelman v IFG, 2021 ONSC 4042 are the governing authorities. In both decisions, the Superior Court has found that section 50.1 and the Regulation do not displace an employee’s common law right to assert constructive dismissal.

Although the law is by no means certain, employers should be aware that according to these decisions, many temporary layoffs due to COVID-19 could be considered unlawful and may entitle employees to wrongful dismissal damages.

Our employment law team at Devry Smith Frank LLP will continue to monitor the state of the law closely. If you have any questions regarding the IDEL, or any other labour or employment law issues, we would be happy to assist you.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Chloe Carr*

Bill 88, the Working for Workers Act, represents one of many attempts by the Ontario legislature to respond to the unique challenges arising during the COVID-19 work-from-home era. One element of this bill will amend the Employment Standards Act, 2000 (“ESA“) to account for the use of electronic monitoring software by employers.  As of October 11, 2022, employers with 25 or more employees are required to have a written policy which addresses the electronic monitoring of employees.

Background

Bill 88, a supplement to the 2021 version of the same name (which you can read more about here) received Royal Assent on April 11, 2022.

Electronic monitoring software, though not exclusively used by employers of remote workers, is typically used to surveil the attendance and productivity of those working from home. It is this remote relationship that the new ESA provisions intend to regulate, although in-person employees will still be entitled to notice if such software is being used to monitor them.

What are the implications for employers?

Employers are not prohibited from utilizing monitoring software.  They must, however, have a policy which addresses the following:

1. Whether the employer electronically monitors employees and if so,
2. a description of how and in what circumstances the employer may electronically monitor employees, and
3. the purposes for which information obtained through electronic monitoring may be used by the employer.
4. The date the policy was prepared and the date any changes were made to the policy.
5. Such other information as may be prescribed.

A copy of the policy must be provided to employees before October 11, 2022, and when changes are made to the policy, updated copies which reflect those revisions must be provided within 30 days of the date on which the changes were made.

When a new employee is hired, they must be provided with a copy of the policy within 30 days of their start date. If using the services of a temporary help agency, those employees must be provided a copy within 24 hours of the start of their assignment, or within 30 days from the day, the employer is required to have the policy in place, whichever is later.

What are the implications for employees?

While there is a presumption that employees have a reasonable expectation of privacy, this presumption can be displaced through the employer’s electronic monitoring or other policy.

There is no recourse under the Working for Workers Act if an employee finds the content of the policy or scope of monitoring to be unreasonable, although certain common law remedies may be available depending on the facts and circumstances. Employees may complain, however, if they are not provided with a copy of the employer’s electronic monitoring policy in accordance with the applicable time frames.

What should be included in a monitoring policy?

The legislative requirements center around transparency when using electronic monitoring rather than limiting the use of this technology. Thus, employers are simply required to state whether or not they will be using such technology and if so, they must explain in what circumstances they intend to do so. The policy must also include the date it was prepared and the date of any changes made to the policy.

While the current requirements are minimal, the legislation requires that the policy include “such other information as may be prescribed,” hinting at the potential expansion of the legal requirements for electronic monitoring policies.[1]

Employers should consider the following when drafting their policy:

• Is the use of monitoring software reasonable and necessary? (Is there a specific need for it? Will it fulfill this purpose and if so, how?)
• What is the scope of the software? (Does it monitor all activity, or simply record when people sign on to their computer, and sign out when they are finished working?)
• How will the information collected be used? (For example, will it be used to determine employee productivity?  To confirm attendance?  To keep records of how long an employee is away form their computer during the day?)
• How can the employer ensure all employees are made aware of the existence of the policy and its content? (The policy could be made available online and employees notified of the date on which becomes effective.  The employer could require the employee to acknowledge in writing that they have read and understood the content of the policy).

If you have any questions regarding the use of electronic monitoring software in the workplace, how to draft such monitoring policies or any other obligations and rights enshrined by these legislative changes please contact Marty Rabinovitch at (416) 446-5826 or Marty.Rabinovitch@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Chloe Carr*

[1] [1] Bill 88, An Act to enact the Digital Platform Workers’ Rights Act, 2nd Sess, 43nd Leg, Ontario, 2022 (assented to 11 April 2022), ON 2022, c 41.1.1(2)3.

This is an update to our blog originally posted on July 6, 2021.

There is no federal or provincial legislation requiring eligible individuals to be vaccinated against COVID-19. However, employers may impose their own vaccination policies as part of a good faith effort to follow public health guidance, stop the spread of COVID-19 and protect their business interests. Whether these policies are enforceable is a question which must be decided by the courts—but they have yet to do so. Labour arbitration decisions provide insight as to which policies may be reasonable and in which circumstances.

It is likely that employer policies with respect to COVID-19 will be enforceable only where reasonable in the full context of all the facts and circumstances. Mandatory vaccination for employees may be reasonable in high-risk circumstances, while the same policy may be unreasonable where practical alternatives exist. Conditions with respect to testing and other restrictions for unvaccinated employees are also likely reasonable. A policy will likely be enforceable only where it is carefully custom-tailored to the particular facts and adaptable to the circumstances of the workplace and the employees. There may be consequences for employees who breach their employer’s vaccination policy.

Facts and circumstances are dynamic. The shifting conditions of the pandemic—such as the emergence of the Omicron variant—present additional challenges and considerations for employers. Dynamic facts demand constant vigilance to ensure that policies are adaptable and reflect the circumstances of the day.

Background

Employers have a statutory duty to safeguard the health and safety of their employees pursuant to the Occupational Health and Safety Act.[1] By law, an employer must take every reasonable precaution to maintain a safe working environment.[2] These steps include following COVID-19 public health guidance in good faith. For example, an employer may impose policies mandating physical distancing, masking, screening—and vaccination.

In Ontario, there are statutory protections for liability as a result of potential exposures or infections to COVID-19 so long as that person was making “a good faith effort to act in accordance with public health guidance,” pursuant to Supporting Ontario’s Recovery Act.[3] Under the Recovery Act, “person” includes “any individual, corporation or other entity.”[4]

However, the Recovery Act excludes protections for many employers; i.e., any employer in a schedule one or two industry (as defined by the Workplace Safety and Insurance Act). This specification is broad and nearly all-encompassing. These employers do not enjoy statutory protections from their employees for COVID-19 liability.[5] Therefore, it is possible that an employee who becomes infected with COVID-19 in the course of their employment may be able to sue their employer—even if that employer was making a good faith effort to follow public health guidance. These statutory protections and exclusions have not yet been tested by the courts.[6] The court will ultimately need to determine whether the employer took all reasonable steps in the circumstances to prevent a COVID-19 outbreak in the workplace.

Public Advice About COVID-19 Vaccines

According to the World Health Organization, there are “safe and effective vaccines that prevent people from getting seriously ill or dying from COVID-19.”[7] Its advice is to “take whatever vaccine is made available to you first, even if you have already had COVID-19.”[8] The Canadian National Advisory Committee on Immunization “strongly recommends a complete mRNA COVID-19 vaccine series” for all eligible persons.[9] As per Health Canada, “vaccination is one of the most effective ways to protect our families, communities and ourselves against COVID-19.”[10]

The courts have taken judicial notice of the fact that “all responsible medical authorities, without exception, have urged people to become inoculated.”[11] While misinformation abounds, myths and disinformation about COVID-19 vaccines have been debunked.[12] The court has also noted that some of the spread of this misinformation is deliberate and malicious.[13]

Not everyone can be vaccinated; e.g., for medical reasons or upon other protected grounds pursuant to the Human Rights Code.[14] Others may be hesitant, while some may make a personal choice to remain unvaccinated based on their individual, sincerely-held beliefs and preferences. Depending on the reason, the individuals may or may not be entitled to accommodation.

Enforceability of Workplace Policies
(Testing, Restrictions, Vaccination, and Disclosure of Vaccination Status)

“I’m strongly recommending that local employers establish a workplace vaccination policy to protect workers, their families and our communities.”[15]
– Dr. Eileen de Villa, Toronto Medical Officer of Health (August 20, 2021)

Courts recognize that health units and medical officers (like Dr. de Villa) should be afforded “significant deference.”[16] In light of this recommendation, an employer might conclude that requiring all employees to be vaccinated is an “obvious and simple” step to prevent exposures, infections, or an outbreak in the workplace.[17] However, such an argument places the interest of health and safety on a collision course with the human rights and other interests of employees, such as privacy and bodily integrity. Courts will need to decide how to draw the line between these competing interests.

At present, there is no case law from the civil courts. In the case of unionized workplaces, courts have held that unionized plaintiffs lack standing to challenge the enforceability of an employer’s vaccination policy in court.[18] In sum, this dearth of judicial opinion means that there is still no clear and specific guidance from the civil courts for employers who seek to draft an enforceable workplace policy with respect to COVID-19.

However, labour arbitration decisions (“awards”) for unionized workplaces may provide some about how courts may eventually evaluate the merits and enforceability of employer vaccination policies.[19]

In general, arbitral awards focus on the facts. Awards are the result of balancing the competing interests using a highly contextual approach, taking care to evaluate the particular circumstances of each case. Arbitrators look for specific details about dangers, hazards, and how certain problems may interfere with business.[20] Other important factors could include the nature of the business, the type of workplace, the kinds of services offered, and the characteristics of the employees. At the same time, arbitrators remain alive to the issue that facts and circumstances are dynamic and subject to change—evolving along with the shifting conditions of the pandemic (e.g., the emergence of the Omicron variant).

Ultimately, arbitral caselaw has shown that policies will be enforced where they are reasonable in the circumstances. An enforceable policy will likely be prudent, strike the right balance between interests, appropriately mitigate actual risks, and reflect the practical realities of the day. In general, an enforceable policy will likely be custom-tailored to suit the parameters and realities of the workplace, and the work of the employees (i.e., it is not a policy which is “one size fits all”).

There are four types of policies which have been considered by labour arbitrators thus far: testing, restrictions, vaccination, and disclosure of vaccination status.

Testing

In Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada—prior to the availability of vaccines—the employer, a nursing home, required all employees to be tested every two weeks or else be subject to discipline; i.e., be “held out of service.”[21] The testing would be conducted by the employer on-site. The union contended that testing seriously breached the employees’ right to privacy and dignity. The employer asserted that it was upon request from or upon recommendation by the Province of Ontario.

It was decided in Caressant that testing all employees under this timetable was reasonable. A nursing home is a contained environment and COVID-19 is often deadly for the elderly. The goal of clearly controlling COVID-19 infection in that environment outweighed the minimal intrusion of a test.

In Unilever Canada Inc v UFCW Local 175, the employer, a food manufacturing facility, required all employees to be tested every week.[22] No specific penalty for noncompliance was specified. The union contended that the policy breached the collective agreement and the Human Rights Code. The employer disagreed and maintained that its testing policy was reasonable.

The arbitrator determined that testing all employees under this timetable was reasonable. Even where there was no evidence of transmission, the arbitrator decided that it was prudent to exercise caution given the nature of the workplace, which is governed by a variety of food safety regulations.

In Ellisdon Construction Ltd v LiUNA Local 183, the employer, a construction contractor, required all employees to be tested twice per week or else not be permitted to access the worksite.[23] The testing would be performed on-site. The union claimed that employees had concerns that the testing was experimental, invasive, and unreliable. The employer contended that the safety of the workplace and of the general public was at risk.

It was decided in Ellisdon that testing all employees under this timetable was reasonable. Given the fact that the residential construction industry is an essential service, its workers put themselves at risk to an extraordinary threat. Further, the risk is increased by the nature of the industry; i.e., whereby workers routinely move between job sites and employers. The goal of preventing the spread of COVID-19 outweighed the intrusiveness of testing.

In Ontario Power Generation (OPG) v The Power Workers Union, the employer, a public business enterprise, required all unvaccinated employees to be tested twice per week or be subject to unpaid leave or termination.[24] The testing would be self-administered by employees, at the expense of the employer. The union contended that a termination penalty without a formal disciplinary process was unreasonable. The company asserted that it was a reasonable measure to mitigate risk.

It was decided in OPG that testing unvaccinated employees under this timetable was reasonable. This arbitral award was a “decision driven entirely by context.” In the backdrop of a global pandemic which has cost tens of thousands of lives so far in Canada, it was decided that a minimally intrusive test as a condition for returning to work was both “sensible and necessary.”

Restrictions

In OPG, supra, it was also decided that limiting access to gyms and other fitness facilities only to vaccinated employees was reasonable.[25] For some employees, physical fitness and evaluation were mandated by virtue of the physically demanding nature of their position. However, gyms are high-risk areas for transmission by their nature. Therefore, requiring employees to be vaccinated to access private fitness facilities is sensible for the same reason that the Province of Ontario requires public gym patrons to be vaccinated in order to enter.

Vaccination

Mandating vaccination may not be possible at all for certain individuals who are unable to be vaccinated. Some people cannot be vaccinated for medical reasons. Others may be entitled to vaccination exemptions pursuant to protected grounds under the Human Rights Code, such as religion or disability. Under the Code, employers have a duty to accommodate these employees up to the point of undue hardship for the employer, having regard to cost and health and safety issues.[26] Such accommodations could include testing or other alternatives. However, an employer has no duty to accommodate an employee who chooses to remain unvaccinated based on their personal choice.[27] According to the Ontario Human Rights Commission (OHRC):

Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code.
…
Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.[28]

With respect to a workplace vaccination policy, mandating vaccination may be reasonable where risks are high and vulnerable populations require protection. It may also be reasonable where necessary to comply with an existing contractual relationship; e.g., an employment agreement, collective agreement, or lease. In contrast, it may be unreasonable where practical alternatives exist; e.g., working remotely, physical distancing, masking, screening, or testing.

In Electrical Safety Authority (ESA) v Power Workers’ Union, the employer required all employees to be fully vaccinated or be subject to discipline, up to and including termination—with allowances for bona fide exceptions.[29] Unvaccinated employees were to be subjected to regular testing. The union contended that the policy violated its members’ bodily integrity. The company argued that it was a reasonable safety precaution.

It was decided in ESA that mandatory vaccination was unreasonable. The “vast majority” of employee work was conducted effectively remotely. Consequentially, it was decided that it would be unjust to discipline or terminate employees for being unvaccinated where reasonable alternatives exist. A testing option for the unvaccinated was reasonable.

The ESA decision also affirmed that under different circumstances, mandatory vaccination policies may indeed be reasonable. For example, in contexts where the risks are high and vulnerable populations require protection. The arbitrator specifically articulated that this particular decision was not “vindication” for those who choose to remain unvaccinated; i.e., “those who continue to refuse to be vaccinated are not just endangering their health but may also placing their employment in jeopardy.”

In Power Workers Union v Elexicon Energy Inc, the employer, a hydro service provider, required all employees to be vaccinated or else they must complete “vaccine awareness training” and be placed on unpaid leave or be terminated.[30] The union supported voluntary vaccination and mandatory testing but drew the line at mandatory vaccination. It asserted that in light of the highly transmissible Omicron variant, vaccination does not prevent an infected person from transmitting COVID-19 to others.

It was decided in Elexicon that mandatory vaccination was reasonable only for employees who (a) do not work from home, or (b) do not work entirely outside. The employer is a provider of essential services and it must be assured that its workforce is capable of providing electricity to the community.[31] The fact that Omicron may be more transmissible notwithstanding vaccination does not affect the employer’s duty to be cautious nonetheless—even against unknown harms. However, for employees who exclusively work from home, mandatory vaccination was unreasonable. Likewise, it would be unreasonable for employees who work entirely outside or who can be reasonably accommodated to work entirely outside.

In Bunge Hamilton Canada v UFCW Local 175, the employer, an agricultural supplier, required all employees to be fully vaccinated or else they may be placed on unpaid leave pending a review of their employment status—with allowances for bona fide exceptions.[32] The union contended that it was unreasonable to discipline employees for being unvaccinated. The company asserted that the policy was necessary to prevent a variety of factors from materially interfering with its business, including complying with the terms of its lease.

It was decided in Bunge that mandatory vaccination was reasonable. In brief, the policy was reasonable because mandatory vaccination was already the policy of the federally-regulated organization from which the business leased property for its operations (i.e., a port authority). If the employer permitted unvaccinated employees to come on-site, it would be in breach of its obligations under its lease. Testing was not a suitable alternative within this context.

Finally, in UFCW Local 333 v Paragon Protection Ltd, the employer, a security company, required all employees to be fully vaccinated or be terminated—with allowances for bona fide exceptions.[33] The union contended that many of it members held genuine reservations due to concerns about the side effects of vaccinations. Some members objected to the choice between vaccination or termination. The company contended that this policy was supported by an existing collective agreement, and necessary as it was a “client customer-facing business” and the majority of its clients already required its employees to be fully vaccinated.

It was decided in Paragon that mandatory vaccination was reasonable. Conveniently, an article in the collective agreement mandated employees agrees to vaccinations. This provision was remarkably prescient; it was agreed to in 2015 and did not contemplate a pandemic. However, the arbitrator also concluded that the vaccination policy balanced the rights of employees, other staff, clients, and members of the public. The arbitrator noted that “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.”

Disclosing vaccination status

In ESA, supra, it was decided that a policy requiring an employee to disclose medical information (such as vaccination status) “must be reasonably necessary and involve a proportionate response to a real and demonstrated risk or business need.”[34]

For example, in Bunge, supra, a requirement for an employee to disclose their vaccine status to the employer was held to be reasonable.[35] Specifically, such disclosure would be a minimal intrusion into the employee’s right to privacy and was considerably outweighed by “enormous public health and safety interests.”

In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (MLSE), an employee was placed on unpaid leave for failing to disclose his vaccination status.[36] The employer, a professional sports team operator, required its employees to be fully vaccinated or be placed on unpaid leave or be terminated. The employee worked at the Scotiabank Arena in close proximity with others. The employer’s policy was enacted the day after the Province of Ontario required patrons who attended events in the area to be fully vaccinated. The union did not dispute the vaccination mandate but contended that an employee’s vaccination status is private and should not be subject to disclosure. The employer asserted that being vaccinated for COVID-19 was a necessary employee qualification.

The arbitrator determined that opposing disclosure of vaccination status is akin to opposing the vaccine mandate. The arbitrator stated, “I do not see how the Employer can enforce a vaccine mandate without requiring disclosure of an employee’s vaccine status.”[37] The arbitrator decided that the policy was reasonable and the unpaid leave was an appropriate outcome.

When personal health information, such as vaccination status, is disclosed, privacy concerns must be addressed. Employers must keep the information confidential, safe, and secure. In MLSE, the arbitrator concluded that the employer had taken the appropriate steps to protect employee confidentiality.

Purpose of Workplace Policies and the Shifting Conditions of the Pandemic (e.g., Omicron)

The stated purpose of a policy may affect its reasonableness and enforceability. An employer may enact a policy with respect to COVID-19 for a variety of purposes. Such purposes may include but are not limited to: improve health and safety, promote vaccine safety education, improve workplace attendance, protect business interests or stop the spread of COVID-19.

In November 2021, the Omicron variant of COVID-19 was identified.[38] It is far more transmissible than the original virus and it is expected that it can spread to vaccinated individuals.[39] This heightened risk of transmission has caused the Ontario Chief Medical Officer of Health, Dr. Kieran Moore, to reassess even having a public vaccine passport system at all.[40] As of March 1, 2022, the vaccine passport system in Ontario will end (although businesses will be permitted to continue to use the province’s proof of vaccination system, should they wish to do so) If the purpose of an employer’s mandatory vaccination policy is to reduce the spread of COVID-19, then it could be argued that the policy lacks a rational connection to the goal in light of Omicron.

Stopping the spread of COVID has indeed been the stated purpose of many of the employer vaccination mandate policies considered in labour arbitrations to date. In Bunge, the purpose was to “prevent the spread of COVID-19.”[41] In ESA, the purpose was aimed at “limiting the risk of contracting and spreading the virus.”[42] However, other policies have considered transmission and harms, or have been more general in nature. For example, in OPG, the policy was aimed at “mitigating the risk of harm from, or transmission of, COVID-19 in the workplace.”[43] In contrast, in Paragon, the policy was to “minimize potential incidents of COVID-19 in the workplace.”[44]

While vaccinations may be less effective in preventing the spread of the Omicron variant, it is expected that vaccines will remain effective in preventing severe illness, hospitalizations, and death from COVID-19.[45] Consequentially, employers should ensure that a mandatory vaccination policy has a purpose which is rationally connected to its means. As an example, a policy which is focused on reducing the harms caused by COVID-19 may be more reasonable than a policy focused on preventing the spread of COVID-19—in light of Omicron.

However, even in light of the uncertainty of Omicron, employers should be cautious and guard against the unknown anyway. As stated in Lexicon:

The Union’s argument that there is no evidence vaccinations will be more effective in preventing the spread of Omicron, even in conjunction with testing, masking, and distancing, than those measures alone without vaccination, is inconsistent on these facts with the precautionary principle which justifies that action be taken to protect employees where health and safety are threatened “even if it cannot be established with scientific certainty that there is a cause and effect relationship between the activity and the harm. The entire point is to take precautions against the as yet unknown.”[46]

Nonetheless, employers should remain cognizant that there are multiple forms of harm which employees may suffer during a pandemic; e.g., mental health harms. Some employees may have mental health conditions that result in elevated anxiety towards receiving vaccination—such anxiety may amount to a disability. In the pre-pandemic era, debilitating mental health issues would have been a recognized legal disability. In the pandemic era, medical licensing bodies have restricted doctors from granting medical exemptions for vaccination on these grounds. The purpose of a vaccination policy should provide for reasonable protections and reasonable accommodations for people who may be at risk of various types of harm, including mental health harms.

As the conditions of the pandemic continue to be dynamic and continue to evolve, it would be prudent to stay up to date with public health guidance to ensure that any employer policies are continuously tailored and re-adjusted to the factual realities of the day. For example, the definition of “fully vaccinated” may evolve if more booster vaccinations become the norm, perhaps as a response to Omicron and other future variants.

Policies are neither “one size fits all,” nor are they “set it and forget it.”

Consequences for Employees who Defy COVID-19 Policies

Labour arbitrators have also considered the appropriate consequences for employees who fail to comply with COVID-19 policies, or who engage in otherwise untenable conduct in the context of the pandemic. For the most egregious violations, termination may be reasonable.

In Garda Security Screening Inc v IAM, District 140, in the very early days of the pandemic, an employee was terminated for failing to self-isolate after being tested for COVID-19, as per the policy of the employer.[47] It was concluded that the employee clearly violated the employer’s policy and public health guidance and that her actions put “countless others at risk of illness or death.”[48] The employee tested positive—after working alongside her coworkers in proximity. This termination was held to be reasonable.

In LiUNA OPDC v Aecon Industrial, an employee was terminated for providing false information in response to a COVID-19 screening.[49] The employee was experiencing symptoms and was advised that he could not attend work. However, the employee returned to work and falsely answered screening questions in the negative. Consequentially, the employee was terminated. The decision concluded that the employee’s “deliberate and cavalier attitude toward the COVID safety risks he represented both to his co-workers and in turn to the Company’s obligations to protect the workplace was unconscionable, unreasonable and totally unacceptable.”[50] This termination was held to be reasonable.

In Ryam Inc Forest Products Group Chapleau Sawmill v USW Local 1-2010, an employee was suspended without pay for three (3) months for removing his face mask in the workplace and threatened to give his supervisor COVID by pretending to spit in his direction.[51] The arbitral decision reduced the suspension to two (2) months. Although the circumstances were very serious, the employee was afforded some leeway by virtue of his four decades of service and lack of disciplinary history.

Where an employee does not comply with a mandatory vaccination policy

Whether termination for being unvaccinated or failing to comply with an employer’s policy is reasonable depends on the facts. Nonetheless, Employment and Social Development Canada has issued guidance to employers with respect to completing Records of Employment (ROE). How an ROE is completed will affect the employee’s eligibility for Employment Insurance (EI). The guidance is specifically as follows:[52]

When the employee doesn’t report to work because they refuse to comply with your mandatory COVID-19 vaccination policy, use code E (quit) or code N (leave of absence).

When you suspend or terminate an employee for not complying with your mandatory COVID-19 vaccination policy, use code M (dismissal or suspension).

If you use these codes, we may contact you to determine:

• if you had adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy

• if the employees were informed that failure to comply with the policy would result in loss of employment

• if the application of the policy to the employee was reasonable within the workplace context

• if there were any exemptions for refusing to comply with the policy

Conclusion

Employers may impose policies with respect to COVID-19 as part of their statutory obligation to safeguard the health and safety of their employees. In following COVID-19 public health guidance in good faith, employers may impose policies with respect to physical distancing, masking, screening, and vaccination. However, mandating vaccination also engages the interests of employees. A balancing exercise is necessary to ensure that any intrusions upon the employee’s rights are reasonable.

Courts have not (yet) provided any guidance to employers with respect to what kind of policies will be enforceable. However, labour arbitration decisions may yield insight as to what kinds of policies will be enforced by the courts; i.e., policies which are reasonable in light of all of the circumstances. These decisions are driven by context and were highly sensitive to the particular facts of each case.

What may be reasonable in one set of circumstances may be unreasonable for another—and circumstances may change. Important factors could include the nature of the business, the type of workplace, the kinds of services offered, and the characteristics of the employees.

Some key generalizations emerge from the arbitral decisions. Testing or restricting the unvaccinated is likely reasonable. Mandating vaccinations may be reasonable under the circumstances; e.g., where risks are high and a vulnerable population requires protection. Lastly, requiring an employee to disclose their vaccination status is also likely to be reasonable. Reasonableness is highly contextual and requires specificity with respect to particular hazards and forms of interference with the business. It is critical to ensure that any COVID-19 policy is adaptable and custom-tailored to the realities of the employees, the workplace, and of the pandemic itself. Where employees violate these policies, penalties may result.

Omicron is an example of how the ever-shifting realities of the pandemic will require constant vigilance from employers to ensure that policies reflect the realities of the day. Keeping employees safe requires a continuous contextual analysis. Ultimately, the key fact in any contextual analysis may be that in Canada, tens of thousands of lives have been lost to COVID-19—and the pandemic is not over.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

[1] RSO 1990, c O.1 [OHSA].

[2] Ibid, s 25(2)(h).

[3] SO 2020, c 26, Sched 1 at s 2(1) [Recovery Act].

[4] Ibid at s 1(2).

[5] Ibid at s 4; Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sched A; with exceptions; see: O Reg 175/98.

[6] There are proposed class actions before the courts; e.g., Nisbet v Ontario, 2021 ONSC 3072.

[7] “COVID-19 advice for the public: Getting vaccinated” (15 November 2021), online: World Health Organization <who.int>.

[8] Ibid.

[9] “Vaccines for COVID-19: How to get vaccinated” (14 January 2022), online: Government of Canada <canada.ca>.

[10] “COVID-19: Effectiveness and benefits of vaccination” (14 December 2021), online: Government of Canada <canada.ca>.

[11] R v Kongolo, 2021 ONSC 6619 at para 41 [Kongolo] citing R v Frampton, 2020 ONSC 5733 at para 6.

[12] “The 12 Common Myths & Misconceptions About COVID-19 Vaccination” (19 May 2021), online: United Nations <un.org>.

[13] Kongolo, supra note 11 at para 40.

[14] Ontario, Ministry of Health, Medical Exemptions to COVID-19 Vaccination, version 3.0 (Toronto: 12 January 2022); RSO 1990, c H.19 [HRC]. Note: where an employee requires accommodation under the Code, an employer is required to provide such accommodation up to the point of undue hardship.

[15] “Toronto Medical Officer of Health strongly recommending Toronto employers institute COVID-19 vaccination policy and support workplace vaccination” (20 August 2021), online: City of Toronto <toronto.ca>.

[16] The Fit Effect v Brant County Board of Health, 2021 ONSC 3651 (CanLII) at para 88.

[17] Electrical Safety Authority v Power Workers’ Union (7 November 2021) arbitrator: John Stout at para 33 [ESA].

[18] Blake v University Health Network, 2021 ONSC 7139 (CanLII) at para 15; Amalgamated Transit Union, Local 113 v Toronto Transit Commission and National Organized Workers Union v Sinai Health System, 2021 ONSC 7658 (CanLII) at para 3.

[19] E.g., the Supreme Court endorsed a line of arbitral decisions which outlined the circumstances under which testing for drugs and alcohol might be permitted; see: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34.

[20] ESA, supra note 17 at para 26.

[21] Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA).

[22] Unilever Canada Inc v United Food and Commercial Workers, Local 175 (24 April 2021) arbitrator: Jules B Bloch [Unilever].

[23] Ellisdon Construction Ltd v Labourers’ International Union of North America, Local 183, 2021 CanLII 50159 (ON LA) [Ellisdon].

[24] Ontario Power Generation v The Power Workers Union (8 November 2021) arbitrator: John C Murray [OPG].

[25] Ibid.

[26] “OHRC Policy statement on COVID-19 vaccine mandates and proof of vaccine certificates” (22 September 2021), online: Ontario Human Rights Commission <ohrc.on.ca>.

[27] Ibid.

[28] Ibid.

[29] ESA, supra note 17.

[30] Power Workers Union v Elexicon Energy Inc, 2022 CanLII 7228 (ON LA) [Elexicon].

[31] Ibid at paras 7, 79.

[32] Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175 (13 December 2021) arbitrator: Robert J Herman [Bunge].

[33] United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd (9 November 2021) arbitrator: F R von Veh [Paragon].

[34] ESA, supra, note 17 at paras 37-38.

[35] Bunge, supra note 32 at paras 23, 25.

[36] Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (12 January 2022) arbitrator: Norm Jesin [MLSE].

[37] Ibid at para 20.

[38] “Update with consideration of Omicron – Interim COVID-19 infection prevention and control in the health care setting when COVID-19 is suspected or confirmed– December 23, 2021” (24 December 2021), online: Government of Canada <canada.ca> [Omicron, Canada].

[39] Ibid; “Omicron Variant: What You Need to Know” (2 Feb 2022), online: Centres for Disease Control and Prevention <cdc.gov> [CDC].

[40] Sean Davidson, “Ontario needs to ‘reassess the value’ of COVID-19 vaccine passport system, top doctor says” (3 February 2022), online: CTV News <ctvnews.ca>.

[41] Bunge, supra note 32.

[42] ESA, supra note 17.

[43] OPG, supra note 24.

[44] Paragon, supra note 33.

[45] CDC, supra note 39.

[46] Elexicon, supra note 30 at para 6, citing Ontario Nurses Association v Eatonville/Henley Place, 2020 ONSC 2467 (CanLII) at para 78.

[47] Garda Security Screening Inc v IAM, District 140 (Shoker Grievance), [2020] OLAA No 162 [Garda].

[48] Ibid at para 15.

[49] Labourers’ International Union of North America, Ontario Provincial District Council and Labourers’ International Union of North America, Local 183 v Aecon Industrial (Aegon Construction Group Inc), 2020 CanLII 91950 (ON LA) [Aecon].

[50] Ibid at para 4.

[51] Ryam Inc Forest Products Group Chapleau Sawmill v United Steelworkers Local 1-2010, 2021 CanLII 61491 (ON LA) [Ryam].

[52] “EI information for employers – COVID-19” (24 December 2021), online: Employment and Social Development Canada <canada.ca>.