November 18, 2021

The Ontario government announced today that it is expanding the number of publicly funded testing locations in the province to help in reducing the risk of transmission over the holiday season and as more activities take place indoors.

The goal is to to ensure that anyone who needs a test, as outlined in the provincial testing guidance, can get a test free of charge in a timely manner with quick access to their results

New programs include:

• Access to publicly funded COVID-19 PCR specimen collection in select pharmacies for all individuals eligible for testing, including symptomatic individuals and close contacts.
• Take-home PCR self-collection kits for eligible individuals, allowing them to pick up their free test and drop off their specimens at participating pharmacies.
• Expanding rapid PCR testing to select assessment centres and pharmacies across Northern Ontario in the coming weeks.
• Pop-up testing sites in higher-traffic public settings to provide vaccine education and help reduce the risk of transmission over the holidays.

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The timeline has been described as ‘in the coming weeks’, with a specific note that testing options will be offered to people without symptoms in various settings across the province starting in mid-December. Sites will be selected based on a risk analysis of hot-spot zones.

An up to date list of participating pharmacies and other sites can be found on the Ontario government website page: COVID-19 testing locations.

New initiatives will also be introduced for schools. These include:

• Providing take-home PCR self-collection kits to all publicly funded schools for students and staff who are eligible for testing as per the provincial testing guidance.
• Distributing 11 million rapid antigen screening tests to all public schools ahead of the December break.
  • Each student will take home a pack of five rapid antigen tests to use over the holidays and throughout the return to in-person learning.

Click here »» for the full government announcement.

I hope you find this information helpful and and informative and that you, your fellow workers and employees, families and loved ones stay safe and healthy as the holiday season approaches.

Please contact me for assistance working through your staffing matters.

November 16, 2021

As grievances and cases regarding COVID-19 vaccination policies make their way through the arbitration and court system, guidance is becoming more clear for employers about the components and enforceability of such policies  

In a recent Client Update I reviewed the November 9th 2021 arbitration decision in which a Policy Grievance against Paragon Security, regarding the enforceability of mandatory vaccination policies, was dismissed.

The second decision in this matter was released on November 11, 2021, in which a different Arbitrator allowed the grievance of the Power Workers’ Union (PWU) against the Electrical Safety Authority (ESA) regarding the implementation of a mandatory COVID-19 Vaccination Policy. Click »» here to download a .pdf of the full Award.

Background
The Electrical Safety Association is responsible for public electrical safety in Ontario. The ESA arranges electrical inspections and provides permits upon inspections for customers whenever an electrician or contractor is doing work to install or change a service. 

The ESA’s Vaccination Policy, issued on October 5, 2021, required all employees to be fully vaccinated by December 22, 2021, or be subject to discipline, up to and including termination. Accommodation was provided for employees who were exempt from vaccination on the basis of protected ground under the Human Rights Code.  

Prior to October 5 the ESA had in place a voluntary vaccination disclosure and testing policy (VVD/T Policy). The PWU did not object to this VVD/T Policy and in fact were publicly supportive of the policy as being a reasonable workplace health and safety measure.

Submissions 
As in the Paragon arbitration, the matter concerned the interpretation of management rights in the collective agreement.

The Union submitted that the policy was unreasonable, and a significant over-reaching exercise of management rights, thus violating the collective agreement as well as employees’ privacy rights and right to bodily integrity.

The ESA denied any violation of the collective agreement, asserting that the introduction their mandatory COVID-19 Vaccination Policy was a reasonable exercise of management rights that fulfilled their legal obligations under the Occupational Health & Safety Act to take every reasonable precaution to protect their workers and the public.

There was no evidence presented that the existing VVD/T Policy was not effective at addressing health and safety concerns.

Arbitrator’s Decision
Arbitrator John Stout reviewed the ‘KVP Test’, which, as discussed in my  November 11th Client Update on the Paragon Security decision, sets out the scope of management’s unilateral, rule making authority under a collective agreement.

Unlike the Paragon decision where the Arbitrator found for the company and dismissed the Policy Grievance, Arbitrator Stout found that the ESA’s mandatory Vaccination Policy of October 5, 2021, “was unreasonable”.

He held that disciplining or discharging an employee for failing to be vaccinated, when it was not a requirement of being hired, and where there is a reasonable alternative, (vaccination combined with a testing alternative) was unjust. 

It was also unreasonable, at the time of the hearing to place employees on an administrative leave without pay if they do not get fully vaccinated. However, the arbitrator did note that this evaluation may change as the situation unfolds in the coming weeks and months. 

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He did not find it to be unreasonable for the ESA to require employees to confirm their vaccination status, as long as the personal medical information was adequately protected and only disclosed with their consent. 

The Arbitrator noted that employees must be cognizant of the fact that in the current circumstances they may be required to disclose their vaccination status to gain entry to third-party premises and the ESA’s offices. Employees may provide a general consent to disclosure of vaccination status in order to access third-party premises, or an employee may reserve the right to disclosure on a case-by-case basis.

Finally, he directed that the ESA refer their Vaccination Policy, and his award to the employer’s Joint Health and Safety Committee, for review and referral back to the Arbitrator if necessary.  

In coming to his decision the Arbitrator took into consideration workplace settings of a vulnerable population such as elderly or children who cannot be vaccinated, and noted that in these types of settings mandatory vaccination policies may not only be reasonable, but may also be necessary.

However, in other workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a reasonable less intrusive alternative such as the VVD/T Policy may be adequate to address the risks.

In a situation where a significant issue arises with respect to accessing third-party sites to perform work, then the ESA may have cause to place an employee on administrative leave until they are vaccinated.

The Arbitrator said without elaboration, that he had read the Paragon arbitration decision and that it could be distinguished from the ESA grievance.  I surmise that the vaccination requirement term in the  Paragon collective agreement, and the context of the vaccination policies would be the basis for distinguishing the two cases.  

Finally, the Arbitrator stated that his finding that the Vaccination Policy was unreasonable was as a result of the circumstances that were present at the time of the hearing, and that as we have seen with the pandemic, the circumstances could change. 

He also stated that he wanted to ensure that his decision was not seen as any form of vindication for those who chose, without a legal exemption under the Ontario Human Rights Code, not to get vaccinated. The choice of individual employees not to be vaccinated may result in consequences at a later date, and in different circumstances. Those who continue to refuse to be vaccinated are not just endangering their health but may also placing their employment in jeopardy.

Takeaways for Employers
The decision is one amongst the continually evolving COVID pandemic circumstances we face. 

It remains to be seen how arbitrators will decide in other circumstances. However, the ESA  decision does emphasize what I said in my Client Updates and webinar presentations regarding the introducing of a Vaccination Policy; that management must conduct an assessment of whether the terms of the policy are reasonable in the context of your particular workplaces. 

For unionized employers, this decision will be raised should your union file a Policy Grievance or an individual employee grievance. The case will be decided based on the assessment of whether your Policy was reasonable in the circumstances present at the time your Vaccination Policy was introduced. Employers will argue that their Vaccination Policy was reasonable in their circumstances and rely on the Paragon Security decision.

For non-unionized employers who terminate an employee for failing to comply with the requirement of your Vaccination Policy to be vaccinated, the issue will be whether management had ’cause’ to terminate the employee. Again, the issue will be one of whether termination of the employee was reasonable, given the circumstances the employer was facing in its response to the COVID situation in its workplace at the time of terminating the employee.

In light of the ESA decision, and the requirement for an employer’s actions to be reasonable, it is recommended that both unionized and non unionized employers consider whether the terms of your Policy are reasonable for your workplace, and consider having and using a provision for an unpaid leave, before you proceed to terminate an employee for not complying with your Vaccination Policy.

I hope you find this information helpful. Please contact me with assistance working through your employment and labour law matters.

November 11, 2021

The government of Ontario has announced that it is pausing any further lifting of capacity restrictions in higher risk settings, pending further monitoring and assessment of public health trends.

This pause effects only:

• food or drink establishments with dance facilities such as night clubs and wedding receptions in meeting/event spaces where there is dancing;
• strip clubs; and
• sex clubs and bathhouses.

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Lifting of capacities in these higher risk settings was scheduled for November 15. The government has said that it will monitor the data for the next 28 days to determine when it is safe to lift capacity limits in these settings.

Click here »» to read the full government announcement.

To be clear, the current capacity measures, in effect since October 25, remain in place:

Proof of double vaccination is required in those settings where capacities have been lifted, including:

• Personal care services (e.g., barber shops, salons, body art);
• Indoor areas of museums, galleries, aquariums, zoos, science centres, landmarks, historic sites, botanical gardens and similar attractions;
• Indoor areas of amusement parks;
• Indoor areas of fairs, rural exhibitions, festivals;
• Indoor tour and guide services;
• Boat tours;
• Indoor areas of marinas and boating clubs;
• Indoor clubhouses at outdoor recreational amenities;
• Open house events provided by real estate agencies; and
• Indoor areas of photography studios and services.

Locations where a wedding, funeral or religious service, rite or ceremony takes place may also implement proof of vaccination requirements for services, rites, or ceremonies at the location.

The government will provide details on regulations and recommendations for Santa Claus parades in the near future.

Proof of vaccination can be obtained through the provincial booking portal or by calling the Provincial Vaccine Contact Centre at 1-833-943-3900.

I hope you find this information helpful and and informative and that you, your fellow workers and employees, families and loved ones stay safe and healthy as the weather requires us to participate in more indoor activities and the holiday season approaches.

Please contact me with any questions you may have or for assistance working through your staffing matters.

November 10, 2021

In an arbitration that provides guidance on the enforceability of mandatory vaccination policies, a Policy Grievance by the United Food and Commercial Workers Union Local 333 (UFCW) against employer Paragon Security (Paragon), has been dismissed by the Arbitrator.

The grievance, filed September 13, was in response to Paragon initiating a mandatory Vaccination Policy on that date.

Background
Paragon provides security staffing for a wide range of clients and the Policy required all employees, including management and supervisors, to be fully vaccinated by October 31, 2021.  One reason for the introduction of the Policy was that a majority of Paragon’s clients were requiring Paragon employees on their sites to be vaccinated.

The Vaccination Policy was distributed to all employees and available online, and included an Exemption Policy and form to accommodate Human Rights Code exemption requests on a Health or Creed/Religious basis.

The Union asserted that the policy was unreasonable and in violation of the collective agreement, and further asserted that the policy violates the Ontario Human Rights Code(OHRC).

The Paragon position outlined multiple points:

• the majority of the Company’s clients had implemented their own mandatory vaccination policies for all staff on site, including contract employees, which would encompass Paragon security staff. 
• Paragon clients who had not yet implemented mandatory vaccination policies had communicated that such policies were forthcoming.
• many Paragon employees had raised concerns about working with other site security team members who were not vaccinated

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The Company asserted that it had no choice other than to implement the policy as an operational necessity to service clients, and that the policy was also necessary to maintain a safe and healthy work environment for ‘our employers, clients and their staff, and the public we serve’.

The Company denied breaching the OHRC, citing the Exemption Policy.

Collective Agreement

The Union and Company are acting under a collective agreement which became effective December 2018 and expires December 2022. 

Paragon has among its clients, health care providers, and Article 24 of the 2018 agreement is prescient, stating that “If an employee is assigned to a site where specific vaccination and or inoculation is required by law or where the conditions of contractors having access to the site stipulates such requirement, the employee must agree to receive such vaccination or inoculation.”

The Article also stipulates that the cost of the procedure will be borne by the Company and that employees required to be vaccinated or inoculated on their own time shall be paid in accordance with the call in provision of the agreement.

Lastly, the Article states that: “Where an employee refuses such vaccination or inoculation for any reason the Company shall reassign the employee as per the relevant provisions of this agreement.”

Submissions

Union Submissions
The Union submitted that “the rush to implement vaccine policies are unfair to our members. Our members are concerned about incurring additional health issues resulting from vaccinations.”

The Union referenced the Health Care Consent Act 1996 in regards to members releasing personal medical information and the provision set out in Section 10 (1) of the Act: no treatment without consent.

It further suggested that the Company vaccination policy was unreasonable because it is “do it or else” – the “else” being removed from a job site and possibly being accommodated for work elsewhere or being placed on an unpaid leave of absence. 

The Union also referenced a leading arbitration decision in KVP Co. v. Lumber and Sawmill Workers’ Union 16 LAC 73, submitting that the Company’s COVID-19 Vaccination Policy is unreasonable and not in conformity with the principle for the introduction of rules by management, set out in the judgment:

“A rule unilaterally introduced by the company, and not subsequently agreed to by the union must satisfy the following requisites:

• 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 employer affected before the company can act on it.
• The employer concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for the discharge.
• Such rule should have been consistently enforced by the company from the time it was introduced.”

The Union also relied on a 2018 arbitration award re: St Michael’s Hospital and the Ontario Hospital Association and the Ontario Nurses Association. This award concerned the reasonableness of a Vaccinate, or Mask Policy introduced by the Hospital in 2014 for the 2014-2015 flu season, in which Health Care Workers who had not received the annual influenza were required to wear a surgical mask, or procedural mask, when in the presence of patients.

Company Submissions
The Company submitted that its COVID-19 Vaccination Policy is reasonable and enforceable and is consistent with the provisions of Article 24.05 in the collective agreement.

It submitted that it has a duty and responsibility pursuant to the Occupational Health and Safety Act to protect the health and safety of its employees, including the duty to prevent COVID-19 infection.

It noted that nothing in the Company policy forces security guards to be vaccinated. Employees can apply for an exemption from the Policy under legitimate grounds and nothing in the Policy violates the OHRC.

Addressing the Heath Care Consent Act, the Company submitted that it has no relevance to the matters being adjudicated, as the Company is not a ‘health care practitioner’ as defined in the Act; and in any event the Policy does not require its employees to be vaccinated without their consent.

The Company submitted that it has completely addressed and satisfied the rules set out in the KVP Award.

In regards to the St. Michael’s Hospital Award, the Company submitted that the matter is three years old, pertains to influenza and is not based on up to date science applicable under current pandemic conditions.

Award
The Arbitrator found for the Company in all instances, and dismissed the Policy Grievance, suggesting however that the Company’s COVID-19 Vaccination Policy be amended so that Staff members with an accepted medical or creed/religion basis have the option to regular and verified rapid antigen testing at their own time and expense.

As I have advised previously, the medical conditions for exemption from vaccination are clearly set out by the government of Ontario and the OHRC guidance is that:

• The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.
• While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.

While Paragon is an exceptional company in that it already has a vaccination policy within its current collective agreement, the provisions of that policy provide good guidance for all employer COVID-19 vaccination policies, namely: 

• clear communication of the policy
• ready and easy employee access to the policy and 
• exemptions that adhere to government medical and OHRC creed/religion guidelines  

I hope you find this information helpful. Please contact me with assistance working through your employment and labour law matters.

November 5, 2021

Yesterday Ontario’s Finance Minister, the Hon. Peter Bethlenfalvy, delivered his first Fall Economic Statement. The Statement is a legally required update on the year’s Budget that was delivered this year on March 24.

Click here »» to access the full Economic Statement.

As I have done in the past, I am forwarding to you an analysis of the update from one of my clients, Sussex Strategy Group, an experienced and highly respected government relations firm that offers strategic and consulting services.

I find their reports and analyses informative and insightful, and I hope you will also. .  

As always, please contact me with any employment questions you may have or for assistance working through your staffing matters.

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Ontario’s 2021 Fall Economic Statement:
Building the Foundation for Re-Election

Yesterday afternoon, Ontario’s Finance Minister, the Hon. Peter Bethlenfalvy, delivered his first Fall Economic Statement. Titled Build Ontario and informally billed as “a pivot to economic recovery,” today’s Fall Economic Statement unofficially kicks off the 2022 election campaign (if it hadn’t started already).

In practice, the Fall Economic Statement is a legally required update on the year’s Budget (delivered on March 24, 2021), halfway through the fiscal year; in reality, the Fall Economic Statement serves as a mini-Budget, full of spending promises, new programs and other important policy pronouncements.

The document also clearly lays out the Ford government’s vision for post-pandemic Ontario – one that relies on infrastructure and other major building projects to drive economic growth and create solutions to Ontario’s significant labour shortfall.

Click here to »» read the the full Sussex Strategies Analysis

November 3, 2021

The government of Ontario today announced that eligibility for booster doses of the COVID-19  vaccine is expanding to additional groups of high-risk individuals starting November 6, 2021.

The province is also making preparations over the coming months to gradually roll out booster doses to all Ontarians aged 12 and over.

Booster doses are being offered to the following vulnerable populations if at least six months have passed since their last dose:

• Individuals aged 70 and over (born in 1951 or earlier);
• Individuals who received two doses of the AstraZeneca vaccine;
• Individuals who received one dose of the Janssen vaccine;
• Health care workers and designated essential caregivers in congregate settings (including long-term care home and retirement home staff and designated caregivers); and
•  First Nation, Inuit and Métis adults and their non-Indigenous household members.

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Bookings for booster doses will start on Saturday, November 6 at 8:00 a.m.  Locations and timing may vary by public health unit based on local planning and considerations. 

Eligible individuals have a variety of ways to book, including:

• the province’s COVID-19 vaccination portal
• by calling the Provincial Vaccine Contact Centre at 1-833-943-3900 (TTY for people who are deaf, hearing-impaired or speech-impaired: 1-866-797-0007).
• directly through public health units that use their own booking systems. Click »» here for a list of Ontario public health units
• through Indigenous-led vaccination clinics
• through select pharmacies, and 
• through primary care settings. 

Hospital-based health care workers are encouraged to reach out to their hospital employer to get vaccinated directly through their hospital’s vaccination program.

Regarding first vaccination doses for children age 5 to 11, public health units across the province are preparing to administer the vaccinations subject to Health Canada approval.

Click »» here for the full government News Release.

I hope you find this information helpful. Please contact me with assistance working through your employment and labour law matters.