Legal challenges to vaccine requirements and employer-imposed health measures are being dismissed one after another, with Canadian arbitrators upholding the need to maintain safe workplaces during a pandemic, legal experts say.
Most of the cases that have already received a decision relate to grievances from employees in unionized workplaces, which benefit from expedited decision-making compared to the courts, they say.
“Early rulings clearly set the tone in favor of employers and their obligation to maintain a safe workplace,” said Adam Savaglio, labor lawyer and partner at Scarfone Hawkins LLP in Hamilton, Ontario.
“We have a significant number of arbitration decisions in unionized environments that indicate vaccine obligations and restrictions are upheld. »
A recent arbitration decision between Hydro One and the Power Workers’ Union dismissed the grievances of several workers placed on unpaid leave for failing to comply with the utility’s COVID-19 vaccination policy.
The policy required unvaccinated workers — and those who refuse to disclose their vaccination status — to take rapid tests regularly.
“Barring employees from reporting to work if they do not provide proof of vaccination or a negative COVID-19 test result is fair and reasonable in the circumstances of this pandemic,” Chief Arbitrator John Stout concluded in her decision.
“Hydro One is meeting its obligations under the Occupational Health and Safety Act to take reasonable precautions to protect the health and safety of its employees and the public they serve. »
In another case, an arbitrator dismissed a grievance filed by Teamsters Local 847 against Maple Leaf Sports and Entertainment.
The union alleged that the company violated the collective agreement after placing a worker on unpaid leave due to “undisclosed vaccination status”.
Arbitrator Norm Jesin said case law tends to support workplace vaccination mandates to reduce the spread of COVID-19, especially when employees work in close proximity to each other.
It is the “duty of employers to take all necessary measures for the protection of workers”, as provided for in the Occupational Health and Safety Act, he added, recalling that the employer had already taken measures to protect the confidentiality of information.
Experts say these cases underscore the current public support for vaccination requirements and health measures in the workplace.
But they think the balance between protecting public health and safeguarding the rights and freedoms of Canadians could gradually shift as infections decline and vaccination rates rise.
“Given the limits imposed by the Charter, these restrictions are temporary in nature and not permanent,” explained Wayne MacKay, professor emeritus at the Dalhousie Schulich School of Law. As these measures drag on, “people are starting to lose patience”.
Professor MacKay said that while pandemic fatigue may weigh heavily, “it is still too early to lift all restrictions”.
“We can’t let the pendulum swing too quickly the other way. One of the real dangers we face right now is going too fast. »
He added that while individual rights are important, “one does not have the individual right to harm or endanger others”.