COVID-19 Vaccination Policy Decisions in Canada

With trends such as remote working, air filtration, masking, hand cleaning and vaccination policies, the pandemic has undoubtedly left an indelible mark on all workplaces. The introduction of COVID-19 vaccination policies, in particular, has had one of the biggest impacts on the Canadian employment and labour landscape in the last decade.

In this article, we provide an overview of the employment and labour litigation trends resulting from these policies.

1. Decisions in Common Law Jurisdictions

COVID-19 vaccination policies have been the subject of a sweeping number of labour arbitration decisions released across Canada’s common law jurisdictions this past year. Many unions have grieved these policies on the basis of alleged violations of collective agreements and alleged contraventions of applicable human rights legislation.

However, labour arbitrators have often upheld the existence of COVID-19 vaccination policies and have conducted a balancing test when assessing the reasonableness of a vaccination policy. These tests typically consider the nature of the workplace (e.g., if workers’ duties take place indoors where transmission rates are generally higher), public health information regarding vaccine efficacy and reasonable accommodations for unvaccinated workers.

In his January 2022 Ontario labour arbitration decision, Arbitrator Mitchell determined that Elexicon’s COVID-19 vaccination policy was reasonable for employees who worked inside and unreasonable for employees who worked exclusively from home. The arbitrator also determined that the policy should not apply to employees who already or can reasonably be accommodated to work entirely outside.

More recently, a small number of civil cases have been released on the reasonableness of COVID-19 vaccination policies that have also ruled in favour of their enforceability. For example, in one of these cases, the court ruled that a non-unionized employee placed on an unpaid leave of absence for failing to follow the employer’s COVID-19 vaccination policy was not constructively dismissed. In another case that is currently under a publication ban, the court ruled on the reasonableness of a COVID-19 vaccination policy in a health-care setting.

2. Policies in Quebec

There are few cases in Quebec addressing vaccination policies, but the trend is moving towards allowing employers to ask for their employees' vaccination status and require employees be vaccinated in certain situations.

In November 2021, Quebec saw its first decision about implementing a COVID-19 vaccination requirement in a private company. The arbitrator confirmed that an employer could request that employees disclose their vaccination status to comply with a client’s requirements. The arbitrator noted that although this request violated employees' rights to privacy under the Quebec Charter of Rights and Freedom, it could be justified on the basis of public order.

In July 2022, Quebec’s Superior Court confirmed the constitutionality of legislation that imposed mandatory vaccination for maritime, air and rail transport. The court recognized that although the requirement infringed the right to liberty and security of the employees under the Canadian Charter of Rights and Freedoms, it was nevertheless justifiable in a free and democratic society.

Employers in Quebec who must or wish to implement vaccination policies should continue to monitor future statements from Quebec tribunals for guidance.

3. Determining the Necessity of Vaccination Policies

As the pandemic continues to evolve, we are starting to see a subtle shift in the COVID-19 vaccination policy discourse in Ontario labour arbitration. In her June 2022 decision, Arbitrator Nairn held that FCA Canada’s two-dose vaccination policy was not reasonable due to the waning efficacy of a two-dose vaccine regime in the pandemic’s omicron variant era. It remains to be seen if further decisions utilizing this line of reasoning will be released and is, nonetheless, a salient reminder that the necessity of vaccine policies will likely continue to change.

Conclusion

While there is no way to predict how much longer workplaces will continue to be affected by the COVID-19 pandemic, the overwhelming trend across Canada remains in favour of vaccination policies. However, the utility of these policies appears to be declining, and the elimination of them altogether may soon become the norm. In the meantime, these vaccination policies are still a reality, and labour arbitrations will likely continue. It remains to be seen how decisions will impact the workplace in the long term.

For more information, please contact any member of our Employment & Labour group.