On August 5, 2021, Prime Minister Trudeau announced that he had asked the clerk of the Privy Council to look at mandatory vaccinations for federal employees. In the three months since that announcement, we have watched as businesses across all industries and sectors established varying forms of mandatory vaccination policies. The wait then began to see how judges and arbitrators would approach these new workplace rules. However, it would appear that our wait for judicial guidance is now over.

Over the last several weeks, judges and labour arbitrators have issued a flurry of decisions considering the enforceability of mandatory vaccination policies. Not surprisingly, the key takeaway for employers from these early cases is that the analysis of whether an employer’s mandatory vaccination policy will be legally enforceable will turn on the specific facts of the case.

The court injunction cases:

While we are still waiting to have a court decision on the merits of an employer vaccination policy, the courts have issued several decisions in response to injunctions brought by employees to prevent the enforcement of these policies pending a hearing before an arbitrator.

In Blake v. University Health Network, 2021 ONSC 7139, the Ontario Superior Court of Justice initially granted the unionized plaintiffs an interim injunction to preserve the employment status quo and halt the enforcement of the hospital network’s mandatory vaccination policy. Under the policy, employees who were not fully vaccinated by October 22, 2021 would be dismissed. However, on October 28, 2021, the Court dissolved the interim injunction on the basis that the unionized plaintiffs did not have standing to pursue the matter before the courts. With respect to non-union employees, Justice Dunphy noted that it was hard to see how any employee who is not in a union could allege irreparable harm arising from threatened termination of employment. In those circumstances, while the employee is not entitled to get their job back, they are entitled to money. 

Similarly, in Amalgamated Transit Union, Local 113 et al v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658, the Ontario Superior Court of Justice declined to grant interim injunctive relief preventing employers from enforcing their mandatory vaccination policies pending the results of the grievance arbitration process. Under the TTC policy, unvaccinated employees who did not have an approved exemption would be placed on unpaid leaves of absence beginning on November 21, 2021; if they remained unvaccinated their employment would be terminated effective December 31, 2021. Sinai Health’s policy required its employees to be fully vaccinated by December 9, 2021, failing which their employment would be terminated.

In dismissing both injunctions, Justice Akbarali clarified the “harm” at issue for the impacted employees. In Justice Akbarali’s view, the employer policies were not “forcing” employees to get vaccinated; rather, the employees were being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other. On that basis, arguments and evidence regarding the safety of the vaccines was not relevant to the issue at hand. Further, with respect to the TTC case, Justice Akbarali held that failing to grant the injunction would not result in any irreparable harm to the employees or the arbitration process. Moreover, the balance of convenience (i.e. which party would suffer greater harm from the granting or refusal of the injunction) tipped in favour of the employer. To this end, Justice Akbarali noted that cases have recently begun to rise in Toronto; the TTC’s ridership includes vulnerable people; and the TTC has experienced outbreaks.

Finally, in Wojdan v. Canada, 2021 FC 1244, a group of employees from the Core Public Administration of the Federal Government sought an interim injunction staying the operation of the “Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police” issued by the Treasury Board of Canada. The Federal Court dismissed the motion noting that, despite the fact the Vaccination Policy came into effect on October 6, 2021, the employees waited until November 11, 2021 to commence the action and seek interim injunctive relief. As a result, the Court accepted the employer’s argument that the employees’ delay in bringing this matter before the Court was a sufficient basis to refuse the request for discretionary, equitable relief.

While the above-noted cases did not finally decide the issue of whether vaccination policies are legal and enforceable, given that the courts did not grant an injunction stopping the implementation of the vaccination policies, on balance the decisions are positive for employers.

The labour arbitration decisions:

Unlike the court injunction cases which do not directly deal with the merits of the employer vaccination policies, the following labour arbitration cases do provide some guidance on the actual enforceability of employer vaccination policies

Key takeaways for employers:

While the case law and regulation of mandatory vaccination policies is likely to evolve as the pandemic continues, these early decisions do provide some helpful guidance for employers:

1. Unions are unlikely to succeed with injunctions to prevent the enforcement of employer vaccination policies in unionized workplaces pending grievance arbitration: To this point, the courts have been clear that the essential character of these disputes lies within the ambit of collective agreements and, therefore, the unions do not have standing to seek injunctive relief. However, even if the courts were to exercise their inherent jurisdiction and consider the merits of the injunction, the courts have ruled that, thus far, the mandatory vaccination policies do not result in irreparable harm to the employees and the balance of convenience favours employers.
2. The enforceability of the mandatory vaccination policies may depend on the facts of the workplace (low risk or high risk for COVID-19) and the text of the particular policy: The three labour arbitration cases summarized above arise from different facts and lead to different results. That said, in each case, arbitrators considered the relative risk posed by having unvaccinated workers in the workforce. Moreover, it is important to note that even in the ESA case, where the arbitrator struck down parts of the employer’s vaccination policy, he left the door open to revisit the policy as the pandemic continues and the workplace situation further unfolds.
3. In certain situations, employers may be able to dismiss employees for failing to comply with an employer’s vaccination policy: While none of the labour arbitration cases dealt with the grievance of an employee who had been dismissed due to their failure to comply with the employer’s vaccination policy, the arbitrator in the OPG case indicated that the termination of an employee’s employment for failing to comply with a vaccination policy could be upheld. Again, the facts of the situation will be critical and the employer’s case strengthened where the employee is dealing with vulnerable populations and the workplace is considered to be high risk for transmission.