Ontario courts have refused to intervene on cases filed by a number of employees and unions seeking injunctions that would prevent Wuhan coronavirus (COVID-19) vaccine mandates from being implemented until grievances are resolved through arbitration. According to the courts, such cases “should be handled by the labor system.”
In a recent interview, Toronto lawyer Tanya Walker said that in non-union workplaces, employers in Ontario are “essentially able to fire anyone for any reason, provided it’s not discriminatory under the Ontario Human Rights Code.”
She noted that termination without cause is costlier for employers. Challenges to vaccine mandates will likely come down to whether appropriate accommodation was offered for medical reasons or religious beliefs, and to whether the termination is considered to be with or without cause.
“If someone has a clear and honest refusal [to be vaccinated] and the vaccination policy wasn’t actually in place when the person was hired, it might be difficult to justify termination with cause,” she added.
Michael Cleveland, a lawyer with the firm Miller Thomson, said employers and workers in Ontario, Canada are getting a clearer picture of when and what kind of vaccine mandates can be enforced in the workplace following recent rulings by arbitrators on the issue.
But he was quick to point out that there’s no “one-size-fits-all” solution when it comes to vaccine mandates at work. “Ultimately, what is reasonable depends on the specific circumstances of the workplace and also things like the surrounding circumstances, [like] is there really expanding community spread in the environment,” Cleveland said.
According to Cleveland, a series of recent decisions has shown labor arbitrators are considering the specifics of each workplace and policy in determining whether the mandates can be imposed in a unionized setting.
In November last year, an arbitrator upheld a policy implemented by a security company whose staff worked at roughly 450 sites throughout the province. The policy indicated that breaches of the mandate could lead to discipline, including termination for just cause.
Arbitrator John Stoat said that the one thing people have all learned about this pandemic is that the situation is “fluid and continuing to evolve.” He noted the lack of case laws on how courts and adjudicators would approach these COVID-19 vaccination policies, seeking guidance only from older jurisprudence dealing with vaccination policies for flu outbreaks in hospitals.
Stoat is positive that as more cases work their way through the labor arbitration system over the coming months, it’s likely a “typology of cases” will emerge regarding what is reasonable in a variety of unionized workplaces.
The Ontario Human Rights Commission has issued guidance on vaccine mandates, saying that “requiring proof of vaccination is generally permissible so long as there are accommodations for those who can’t be immunized for reasons under the human rights code, such as religion or disability.” However, it notes that personal preferences do not meet the threshold for accommodation under the code.
A new Postmedia-Leger poll reported how Canada’s workplaces have changed during the pandemic.
A solid 50 percent never left their workplaces (frontline workers in healthcare and essential service industries), around 13 percent exclusively worked from home, nine percent split time between home and workplace in a more or less regular way and eight percent worked mostly from home and occasionally went to their workplaces. Meanwhile, 20 percent of Canadians worked at home for a while but are now back in their workplaces.
Though vaccination numbers are increasing, many corporate workers still fear the prospect of returning to their workplaces.
They have spent time thinking about what they would do when their desk-neighbors extend their arms for a greeting, or whether they would dodge workmates who run toward them with wide smiles and babbling reception. Some are even considering taping off their workspaces with bright “caution” tape to keep their co-workers at bay.
Watch the video below about vaccine mandates in workplaces.
This video is from the Take down CCP channel on Brighteon.com.
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