What're the consequences for failing to consult unions on the creation of policies?
by Rhonda B. Levy and George Vassos of Littler
In Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), 2022 CanLII 78173, Arbitrator Stephen Raymond decided that a mandatory vaccination policy (Policy) requiring employees in two long-term care homes to receive three doses of the COVID-19 vaccine was reasonable. The homes were operated by the Regional Municipality of York (Employer).
This was the second grievance regarding the Policy. In the first, the Employer’s two-dose Policy was found reasonable throughout the Employer’s operations, including in its two long-term care homes.
As the Union reserved an argument that the Policy’s contemplation of termination of employment for non-compliance was unreasonable, it will be addressed in a third decision.
On May 31, 2021, Ontario issued a directive that operators of long-term care homes must have a mandatory vaccination policy in place by July 1, 2021 (Directive).
On July 1, 2021, in accordance with the Directive, the Employer put the Policy in place requiring full vaccination by November 1, 2021.
On October 1, 2021, Ontario announced that it required all workers in long-term care homes to have two doses of the vaccine by November 15, 2021.
On December 31, 2021, Ontario announced that it required all workers in long-term care homes to have three doses of the vaccine by January 28, 2022. The Employer amended its Policy to reflect this. Ontario extended the January 28, 2022, deadline to March 14, 2022.
Although Ontario’s Directive was revoked on March 14, 2022, the Employer continued to enforce the Policy.
On March 17, 2022, the Ontario Science Table reported, among other things, that vaccines are the best defence against getting and spreading COVID-19.
On June 15, 2022, the Union filed a policy grievance regarding the Policy.
The parties agreed that to determine whether a unilateral policy is appropriate, the following test set out in Re Lumber and Sawmill Workers’ Union, Local 2537 and KVP Co. (1965) 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (“KVP test”) must be satisfied:
- It must not be inconsistent with the collective agreement;
- It must not be unreasonable;
- It must be clear and unequivocal;
- It must be brought to the attention of the employee affected before the employer can act upon it;
- The employee concerned must have been notified that breach of such a rule could result in discharge if the rule is used as a foundation for discharge; and
- Such a rule should have been consistently enforced by the employer from the time it was introduced.
The Union argued that the Policy did not meet KVP part one (Part One) because it was inconsistent with Article 2.3 (d) of the collective agreement (CA), which provides that management rights (e.g., the imposition of a policy) have to be carried out in a manner that is fair, reasonable and consistent with the collective agreement.
The Union also argued that the Policy did not meet KVP part two (Part Two) because it was unreasonable for the following reasons:
- It was no longer supported by the Directive; and
- It did not strike the appropriate balance between the interests of individual employees and the Employer.
Finally, the Union argued that it should have been consulted about the Policy.
The Employer argued that the Policy was appropriate given its collective agreement, statutory obligations, and the best information available to it from the Ontario Science Table.
Arbitrator Raymond considered the following issues:
Does the policy meet part one of the KVP test?
The arbitrator rejected the Union’s argument that the Policy did not meet Part One. For the following reasons, Arbitrator Raymond saw nothing in the Policy that was inconsistent with the collective agreement:
- As the Union did not argue that the Employer “was precluded from introducing or amending its policies because to do so would have violated this collective agreement,” he assumed that there was no language in the Employer’s CA precluding it from doing so.
- The CA provisions pointed to by the Union created no inconsistency between the collective agreement and the Policy.
- Article 11.1 of the CA, which provided that the Employer “is committed to protecting its employees from occupational disease” and “will make every effort to provide and promote a safe and healthy work environment,” might suggest that, in fact, the CA “mandates the Employer to take the precautions for employee health and safety it has by imposing a three-dose mandatory vaccination policy.”
Does the policy meet part two of the KVP test (subject to the reserved argument in respect of termination of employment)?
The Union argued that the Policy was unreasonable and failed to meet Part Two because the Directive was revoked and because it did not properly balance the interests of individual employees and the Employer. Arbitrator Raymond rejected these arguments. He found that it was not inherently unreasonable to have a vaccination policy without the Directive’s mandate. He noted the caselaw put forth by the Employer, which demonstrated that arbitrators have found mandatory vaccination policies reasonable in workplaces that had no Directive mandating them.
Although the arbitrator accepted that the individual employees who chose not to comply with the Policy had “real and serious interests,” including the right to bodily integrity, he concluded that the Employer’s interests should be given more weight; the Policy was reasonable because if the Employer did not have it in place, it would have failed to meet its CA obligations to make every effort to promote a safe and healthy work environment; its obligation under Occupational Health and Safety Act (OHSA) to “take every precaution reasonable in the circumstances for the protection of a worker”; and its obligation under the Fixing Long-Term Care Act, 2021 to operate its long-term care homes so that its residents “may live…in…safety.”
What impact is there from the failure of the Employer to consult the Union about the creation of the mandatory vaccination policy?
Although Arbitrator Raymond understood the Union’s frustration over the Employer’s failure to consult it about the Policy’s creation or its amendments, he indicated that since the Employer had not violated a provision in the CA, he could not censure the Employer about its lack of consultation.
Bottom Line for Employers
Arbitrator Raymond’s decision follows the trend among arbitrators to uphold mandatory vaccination policies. It is particularly interesting because the arbitrator decided that the employer’s three-dose policy was inherently reasonable despite the revocation of a provincial Directive mandating it. The decision follows the predominant view that an employee’s right to bodily integrity is outweighed by the employer’s obligation under OHSA to “take every precaution reasonable in the circumstances for the protection of a worker.” Furthermore, it emphasizes that the rights of a long-term care home employee are also outweighed by the employer’s statutory obligation to operate its long-term care homes in a manner that allows its residents to “live…in…safety.”