{"id":6025,"date":"2021-11-16T09:57:15","date_gmt":"2023-08-12T08:04:04","guid":{"rendered":"https:\/\/www.millerthomson.com\/when-are-covid-19-vaccination-policies-enforceable-in-unionized-workplaces-a-review-of-recent-arbitration-awards\/"},"modified":"2026-03-10T14:14:25","modified_gmt":"2026-03-10T18:14:25","slug":"when-are-covid-19-vaccination-policies-enforceable-in-unionized-workplaces-a-review-of-recent-arbitration-awards","status":"publish","type":"post","link":"https:\/\/www.millerthomson.com\/en\/insights\/labour-and-employment\/when-are-covid-19-vaccination-policies-enforceable-in-unionized-workplaces-a-review-of-recent-arbitration-awards\/","title":{"rendered":"When are COVID-19 vaccination policies enforceable in unionized workplaces? A review of recent arbitration awards"},"content":{"rendered":"\n

In two decisions released last week, labour arbitrators ruled upon the enforceability of workplace COVID-19 vaccination policies. In one decision,[1]<\/a> the arbitrator upheld the employer\u2019s policy as reasonable. In another,[2]<\/a> an employer\u2019s vaccination policy was found to be unreasonable.  These decisions provide a useful indication of how decision-makers are likely to approach the adjudication of workplace COVID-19 vaccination policies going forward.<\/p>\n\n\n\n

UFCW Local 333 and Paragon Protection Ltd.<\/h2>\n\n\n\n

On November 9, 2021, Arbitrator von Veh, Q.C. dismissed a policy grievance brought by a union against an employer\u2019s COVID-19 vaccination policy. In a welcome ruling for employers, Arbitrator von Veh concluded that the policy was reasonable, enforceable, and compliant with the Ontario Human Rights Code.<\/em><\/p>\n\n\n\n

Background<\/h3>\n\n\n\n

The union that brought the grievance, UFCW Local 333 (the \u201cUnion\u201d), represents approximately 4400 security guards employed by Paragon Protection Ltd. (the \u201cCompany\u201d). The Company\u2019s employees worked at roughly 450 client sites in Ontario. Many of these sites had implemented (or were in the process of implementing) requirements that contractors be fully vaccinated in order to continue working on the client\u2019s premises.<\/p>\n\n\n\n

On September 3, 2021, the Company introduced its own COVID-19 vaccination policy (the \u201cPolicy\u201d). The Policy required employees to be fully vaccinated by October 31, 2021, subject to applicable exemptions under the Ontario Human Rights Code<\/em>. Employees were required to provide a signed declaration confirming their status as fully vaccinated. Employees could also request accommodation by way of submitting a \u201cCOVID-19 Vaccination Exemption Request Form.\u201d The Policy stated that violating the Policy could be grounds for disciplinary action up to and including termination for just cause.<\/p>\n\n\n\n

The Union\u2019s grievance<\/h3>\n\n\n\n

The Union filed a grievance, arguing (among other things) that the Policy contravened the collective agreement and the Ontario Human Rights Code<\/em>. It argued that the Policy did not comply with the often-cited \u201cKVP criteria\u201d[3]<\/a> for rules which are unilaterally introduced by an employer, including the requirement that such rules must not be unreasonable or inconsistent, must be clear and unequivocal, must be brought to the attention of employees, and must be consistent with the collective agreement. The Union also contended that the Policy contravened the Health Care Consent Act, 1996<\/em>,[4]<\/a> which mandates that no \u201ctreatment\u201d may be provided without consent and that such treatment must be administered by a \u201chealth practitioner.\u201d<\/p>\n\n\n\n

The Union also submitted that the Policy contradicted an arbitration award from 2018,[5]<\/a> which had found that a hospital\u2019s policy requiring health care workers to receive an influenza vaccine, or wear a mask in areas where patients were present, was not enforceable.<\/p>\n\n\n\n

The arbitrator\u2019s findings<\/h3>\n\n\n\n

Ultimately, Arbitrator von Veh found that the Policy was reasonable and enforceable for the following reasons:<\/p>\n\n\n\n