Are Your Covid-19 Policies Reasonable?

Are Your Covid-19 Policies Reasonable?

These recent decisions may help shed some light on that. 

Written by: Kelly Lanyi-Bennett

As with all things related to the ongoing Covid-19 pandemic, the law surrounding mandatory mask and vaccination policies is evolving quickly. In the past few months, we saw the first written decisions on masking policies in the human rights context, and in the past few weeks the first written decisions on mandatory vaccination policies in the labour arbitration context. While decision makers have been relatively consistent with respect to the reasonableness of masking policies, there is some inconsistency in the assessment of the reasonableness of vaccination policies.

Below we review four of the recently published decisions on these topics and discuss what facts we believe each decision turned on.

Mandatory Mask Policies – Decisions from the Alberta Human Rights Commission

The Alberta Human Rights Commission recently provided guidance on whether a business’s mandatory mask policy infringed customers’ human rights under the Alberta Human Rights Act.

While these decisions are somewhat “old news”, we think the analysis is helpful when dealing with mandatory vaccination policies. Crucially, both decisions suggest that the existence of municipal masking bylaws does not preclude businesses from implementing their own, and potentially stricter, mask policies.

In, Szeles v Costco Wholesale Canada Ltd., 2021 AHRC 154, the Chief of the Commission and Tribunals (the “Chief”) dismissed the complainant’s allegations that Costco’s mandatory mask policy for in-store shopping infringed his rights on the grounds of physical disability under s. 4 of the Alberta Human Rights Act which protects a person’s access to goods, services, facilities etc. The Chief found that, while the mask policy did limit the rights of some customers, the policy was made for valid business reasons and in good faith, and that to accommodate the complainant would result in undue hardship to Costco and their employees. The Chief found the complainant did not provide sufficient evidence to justify proceeding to a hearing and dismissed the complaint.

In a similar case, Pelletier v 1226309 Alberta Ltd. o/a Community Natural Foods, 2021 AHRC 192, the Chief came to the same conclusion as in Szeles. This complainant similarly claimed that the respondent store was discriminating against him on the grounds of physical disability and religious belief by requiring him to wear a mask to shop in-store. The Chief again found that the complainant had failed to provide sufficient evidence to establish that he had a physical disability requiring accommodation relating to mask wearing, or that wearing a mask violated a tenet of his religious beliefs. In addition, the Chief found that even if the complainant had established a prima facie case of discrimination, the respondent’s policy was made in good faith and with a legitimate business purpose. Moreover, the alternatives the respondent offered, which included free personal shopping or delivery services for those who had a medical exemption, were reasonable.

Mandatory Vaccine Policies – Decisions of Ontario Labour Arbitrators

In early November, two union grievance decisions were released only two days apart. In United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd. (Paragon), Arbitrator von Veh considered a mandatory vaccine policy for unionized security guards employed by Paragon but working at third party sites. The policy required all employees to be fully vaccinated by a certain date and to provide confirmation of their vaccination status. Employees were informed that failure to meet these requirements would have consequences for their employment, up to and potentially including termination. In its submissions, Paragon highlighted that its staff were public facing, and that many of the third-party sites where their employees worked were already requiring proof of vaccination for everyone attending at the building, including the security guards. The collective agreement in question included a provision which stated that Paragon retained the ability to make reasonable rules and regulations relating to vaccinations / inoculations.

The Arbitrator found that, based on the circumstances before him, the policy was reasonable and in compliance with the law in Ontario as well as the collective agreement in place between the parties.

Just two days after the Paragon decision was published, the decision in Electrical Safety Authority and Power Workers’ Union (Electrical Safety), which dealt with a very similar policy, was released. The mandatory vaccine policy implemented by the Electrical Safety Authority required employees to be fully vaccinated by a certain date and declare their vaccination status, or face discipline or discharge. Interestingly, this policy replaced an earlier one that required employees to either be vaccinated or provide the results of regular tests (the Union had not objected to the preceding policy). The employees in question were sometimes required to travel or attend at third party sites, but the evidence suggested that employees were largely able to work remotely. The collective agreement between the parties in this case made no mention of vaccinations.

In support of his finding that the policy was unreasonable, Arbitrator Stout noted:

• Employees were able to work from home without significant impact on the employer’s operations; and
• A less intrusive option, such as the previous policy that allowed for regular testing, would likely have been adequate to address any risks.

In addition, Arbitrator Stout found that the Electrical Safety Authority did not demonstrate that it could not provide accommodation for unvaccinated employees by having other employees travel or attend at third party sites on the limited occasions when it was. He opined that “disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of employment and where there is a reasonable alternative, is unjust.”

What Does This Mean for Business Owners?

Despite the inconsistent outcomes, Paragon and Electrical Safety are largely complementary – the enforceability of mandatory vaccination policies will be a contextual analysis and will depend on the wording of a specific collective agreement as well as the presence and feasibility of alternatives to mandatory vaccination (including working remotely, regular testing etc.).

To our knowledge, there are currently no written decisions from a Canadian court assessing whether a mandatory vaccination policy is reasonable or enforceable. However, there is a decision out of Ontario which denied a request for an injunction to preclude discipline of unionized workers in relation to a vaccination policy pending an upcoming labour arbitration. Nevertheless, we expect that a Court’s analysis would be similar to what was employed in Paragon and Electrical Safety.

If you are considering implementing a Covid-19 mandatory mask policy, or mandatory vaccination policy, contact a member of Parlee McLaws’ Labour and Employment team and let us help guide you through the process.

Disclaimer: This article is to be used for educational and non-commercial purposes only. Parlee McLaws LLP does not intend for this article to be a source of legal advice. Please seek the advice of a lawyer before choosing to act on any of the information contained in this article.