On March 1, 2022, the Government of Ontario lifted various COVID-19 restrictions and measures, aimed at moving the province to the second stage of the re-opening plan. The most notable change was the removal of the vaccine passport system. Many employers have questioned how these adjustments will affect the perceived reasonableness of their vaccination policies.
The Ontario Labour Relations Board recently provided helpful context regarding the effect of government mandates on the reasonableness of vaccination policies in PWU v. Elexicon Energy Inc., 2022 CanLII 7228. The Board noted that the government’s implementation of COVID-19 measures is not a determinative factor in assessing whether employer rules are reasonable. The reasonableness of an employer’s unilaterally imposed vaccination policy is determined based on the criteria set out in Lumber and Sawmill Workers Union Local 2537 v KVP Co.:
- The policy must not be inconsistent with the collective agreement;
- The policy must not be unreasonable;
- The policy must be clear and unequivocal;
- The policy must be brought to the attention of the employee affected by the policy before the employer can act on it;
- The employee concerned must have been notified that a breach of the policy could result in his discharge if the rule is used as a foundation for the discharge; and,
- Such policy should have been consistently enforced by the company from the time it was introduced.
The Board also remarked that given the current state of the COVID-19 pandemic, notably the high-rate of transmissibility of the Omicron variant, there are clear health and safety reasons for maintaining vaccination policies. From the perspective of the Board, the Government of Ontario has not in any way prohibited or discouraged the adoption and/or continued use of vaccination policies. Instead, such decisions have been left to employers based on the circumstances of their individual workplaces.
Therefore, in short, the amendments to the government’s COVID-19 protocols will not have a direct effect on the enforceability of an employer’s vaccination policy.
It is nevertheless important to note, the reasonableness and enforceability of a vaccination policy is highly contextual and based on the specific circumstances of a workplace. So, as we continue to navigate through the COVID-19 pandemic it will be important for employers to continue to assess whether the use of their vaccination policy remains a necessary tool to ensure the health and safety of their employees.
The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.