As the COVID-19 pandemic has evolved, so too have workplace dynamics, rules, and consequences. One year ago, before vaccinations to COVID-19 were broadly available to the public, we reviewed some of the early arbitral jurisprudence addressing for cause terminations of employees who did not comply with workplace COVID-19 safety protocols. Now, the availability of COVID-19 vaccines has added a new layer of complexity for workplace parties to navigate.
Prior to the COVID-19 pandemic, the vaccine-related arbitral jurisprudence was dominated by the “vaccinate or mask” cases dealing with flu vaccine policies, which set a relatively high threshold for the reasonableness of such policies. Today’s landscape is very different. Many employers have opted to impose mandatory vaccination policies in their workplaces considering the highly contagious and serious nature of COVID-19, the efficacy and availability of vaccines, and the obligation of employers under the Occupational Health and Safety Act, to “take every precaution reasonable in the circumstances for the protection of a worker.”
In the last few months, we have seen a handful of decisions from labour arbitrators, courts, and labour boards that offer some insight into how mandatory vaccination policies (“MVPs”) are being reviewed. The cases we discuss relate to: (1) interlocutory relief from MVPs, (2) unions’ duty of fair representation in challenging MVPs, and (3) the reasonableness of MVPs in different workplace contexts.
As we describe below, applications for interlocutory relief against the introduction of MVPs have thus far been unsuccessful before courts and arbitrators, and trade unions have been given deference as to whether and how they challenge such policies. Beyond that, in the context of the COVID-19 pandemic, arbitrators are generally considering MVPs to be part of a reasonable strategy to protect the health and safety of employees and members of the public in in-person workplaces. So long as COVID-19 continues to plague us and vaccines continue to be an effective measure to control the spread, we can expect MVPs to be a common health and safety measure in workplaces where workers physically interact closely with others.