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Anyone know what the legal grounds are for vaccine mandates in workplaces?

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  • Jan 1st, 2022 2:30 pm
Deal Addict
Sep 3, 2020
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Anyone know what the legal grounds are for vaccine mandates in workplaces?

Just curious.
63 replies
Deal Addict
Oct 13, 2014
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Cannot remember where you are located but here is the most recent court decision in Ontario whereby they also reference a similar decision in Quebec. I would suspect most, if not all the other provinces would follow the same line:

Amalgamated Transit Union, Local 113 et al v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658

Finding that even if she agreed that that Court should exercise its jurisdiction, the Court held that NOWU had mischaracterized the harm at issue. Justice Akbarali found that employees were not being forced to be vaccinated under the Policy. Rather, she determined, they were being forced to choose between (i) getting vaccinated and keeping their job; and (ii) remaining unvaccinated and losing their jobs. Justice Akbarali noted that the requirement to “choose between two undesirable outcomes” did not create harm that would “render the arbitration moot.” This analysis is consistent with a recent Québec Superior Court decision, Michel Lachance c. P.G. du Quebec, where that court similarly concluded that a vaccine mandate does not cause irreparable harm because employees are not forced to vaccinate.

The actual decision: https://hicksmorley.com/wp-content/uplo ... easons.pdf

Keep in mind that this particular case was also in regards to the process, in that it should first be decided by an Arbitrator before coming to court.

To answer you question most employers are relying on the Health and Safety Act (Ont) or whatever is applicable in a respective province being specific to Covid-19 or Health & Safety. The employer is mandating a safe workplace for the majority.
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Mar 15, 2005
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In many jurisdictions in Canada and the US the general consensus is that employers are legally able to enforce a vaccine mandate for staff

Get your shot if you haven't
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Bottom line no employer is obligated to employ you period. You can contest any policies or rules, but at best their obligations to employees is a severance package. If you don't want to work there anymore, have your position eliminated and take severance. Otherwise follow the rules.
Deal Guru
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Mar 31, 2008
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Ziggy007 wrote: In many jurisdictions in Canada and the US the general consensus is that employers are legally able to enforce a vaccine mandate for staff

Get your shot if you haven't
It depends on the job. If the job entails WFH, there should be more accomodation allowed vs someone who is public facing.
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rcmpvet wrote: Cannot remember where you are located but here is the most recent court decision in Ontario whereby they also reference a similar decision in Quebec. I would suspect most, if not all the other provinces would follow the same line:

Amalgamated Transit Union, Local 113 et al v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658

Finding that even if she agreed that that Court should exercise its jurisdiction, the Court held that NOWU had mischaracterized the harm at issue. Justice Akbarali found that employees were not being forced to be vaccinated under the Policy. Rather, she determined, they were being forced to choose between (i) getting vaccinated and keeping their job; and (ii) remaining unvaccinated and losing their jobs. Justice Akbarali noted that the requirement to “choose between two undesirable outcomes” did not create harm that would “render the arbitration moot.” This analysis is consistent with a recent Québec Superior Court decision, Michel Lachance c. P.G. du Quebec, where that court similarly concluded that a vaccine mandate does not cause irreparable harm because employees are not forced to vaccinate.

The actual decision: https://hicksmorley.com/wp-content/uplo ... easons.pdf

Keep in mind that this particular case was also in regards to the process, in that it should first be decided by an Arbitrator before coming to court.

To answer you question most employers are relying on the Health and Safety Act (Ont) or whatever is applicable in a respective province being specific to Covid-19 or Health & Safety. The employer is mandating a safe workplace for the majority.
Clearly specific company situations differ. Here's one arbiteur ruling that is probably VERY shocking to the posters here

https://www.lawtimesnews.com/practice-a ... tor/361910

In his decision, Chief Arbitrator John Stout sided with PWU and held that ESA’s mandatory vaccination policy was unreasonable, to the extent that employees refusing to get vaccinated can be disciplined or terminated. “In my opinion, ESA has acted prematurely and without considering the individual rights of employees.”

According to Stout, the collective agreement had no provisions specifically addressing vaccinations and the ESA had not previously required any employees to be vaccinated as a condition of employment. There was also no government mandate that all ESA employees must be vaccinated, he said. “I have also not been provided with any prior authority (arbitration award or court decision) that upholds a mandatory employer vaccination rule or policy applicable to all employees, without specific collective agreement language or legislative authority, outside of a healthcare or long-term care setting,” he added.
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Feb 27, 2012
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Can they terminate you for cause, the cause being refusal to get vaccinated? no

Can they terminate you for no reason at all? yes, provided you get paid severance
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at1212b wrote: Clearly specific company situations differ. Here's one arbiteur ruling that is probably VERY shocking to the posters here

https://www.lawtimesnews.com/practice-a ... tor/361910

In his decision, Chief Arbitrator John Stout sided with PWU and held that ESA’s mandatory vaccination policy was unreasonable, to the extent that employees refusing to get vaccinated can be disciplined or terminated. “In my opinion, ESA has acted prematurely and without considering the individual rights of employees.”

According to Stout, the collective agreement had no provisions specifically addressing vaccinations and the ESA had not previously required any employees to be vaccinated as a condition of employment. There was also no government mandate that all ESA employees must be vaccinated, he said. “I have also not been provided with any prior authority (arbitration award or court decision) that upholds a mandatory employer vaccination rule or policy applicable to all employees, without specific collective agreement language or legislative authority, outside of a healthcare or long-term care setting,” he added.
Sure, but he also said
Stout ruled that the mandatory vaccination policy was unreasonable for another reason – the ESA can place unvaccinated employees on leave without pay.
So yeah, in this labour agreement, they can't discipline or fire you for not getting vaccinated. But they can put you on unpaid leave. Not an expert, but I'd guess that feels a lot like getting fired, without the severance.

C
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CNeufeld wrote: Sure, but he also said


So yeah, in this labour agreement, they can't discipline or fire you for not getting vaccinated. But they can put you on unpaid leave. Not an expert, but I'd guess that feels a lot like getting fired, without the severance.

C
You didn't read the rest of it. He talks about WFH being a major factor in how unreasonable one catch all policy of unpaid leave is.

Please provide the actual quote and reference on unpaid leave and no severance is stated. I don't see it and I think you are making it up.
Banned
Nov 26, 2021
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at1212b wrote: You didn't read the rest of it. He talks about WFH being a major factor in how unreasonable one catch all policy of unpaid leave is.

Please provide the actual quote and reference on unpaid leave and no severance is stated. I don't see it and I think you are making it up.
He is opining. It wasn't in the judgment you referenced.

Our legal system doesn't view a lot of freedoms and privilege's in the same regard as down south.

Edit: Another one in the States. You'll never see something to this extent in Canada though, regardless of it's legality (which is largely a matter of opinion).
https://www.foxnews.com/politics/judge- ... ten-states
Last edited by GimmeTheLight on Nov 29th, 2021 10:32 pm, edited 1 time in total.
mr_raider wrote: The dictionnary [sic] is not an appropriate source.
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at1212b wrote: You didn't read the rest of it. He talks about WFH being a major factor in how unreasonable one catch all policy of unpaid leave is.

Please provide the actual quote and reference on unpaid leave and no severance is stated. I don't see it and I think you are making it up.
The quote I provided was from the last paragraph of the article you posted a link to. So no, not “making it up”.

C
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Nov 26, 2021
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CNeufeld wrote: The quote I provided was from the last paragraph of the article you posted a link to. So no, not “making it up”.

C
Isn't Stout actually stating the opposite by saying in his ruling that it's unreasonable?

"Stout ruled that the mandatory vaccination policy was unreasonable for another reason – the ESA can place unvaccinated employees on leave without pay"
mr_raider wrote: The dictionnary [sic] is not an appropriate source.
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GimmeTheLight wrote: Isn't Stout actually stating the opposite by saying in his ruling that it's unreasonable?

"Stout ruled that the mandatory vaccination policy was unreasonable for another reason – the ESA can place unvaccinated employees on leave without pay"
My interpretation…. The ESA didn’t need the mandatory vaccine policy that allowed for termination because they could simply chose to put someone on unpaid leave instead. I don’t see how being on unpaid leave is a whole lot different than simply firing someone, but the arbitrator seemed to think that was a less damaging alternative.

C
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Sep 3, 2020
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rcmpvet wrote: Cannot remember where you are located but here is the most recent court decision in Ontario whereby they also reference a similar decision in Quebec. I would suspect most, if not all the other provinces would follow the same line:

Amalgamated Transit Union, Local 113 et al v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658

Finding that even if she agreed that that Court should exercise its jurisdiction, the Court held that NOWU had mischaracterized the harm at issue. Justice Akbarali found that employees were not being forced to be vaccinated under the Policy. Rather, she determined, they were being forced to choose between (i) getting vaccinated and keeping their job; and (ii) remaining unvaccinated and losing their jobs. Justice Akbarali noted that the requirement to “choose between two undesirable outcomes” did not create harm that would “render the arbitration moot.” This analysis is consistent with a recent Québec Superior Court decision, Michel Lachance c. P.G. du Quebec, where that court similarly concluded that a vaccine mandate does not cause irreparable harm because employees are not forced to vaccinate.

The actual decision: https://hicksmorley.com/wp-content/uplo ... easons.pdf

Keep in mind that this particular case was also in regards to the process, in that it should first be decided by an Arbitrator before coming to court.

To answer you question most employers are relying on the Health and Safety Act (Ont) or whatever is applicable in a respective province being specific to Covid-19 or Health & Safety. The employer is mandating a safe workplace for the majority.
Thank you for another very thoughtful and kind post @rcmpvet

I am in BC, but this is very interesting. I suspect the grounds are indeed Health & Safety Acts of the jurisdiction.
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Ziggy007 wrote: In many jurisdictions in Canada and the US the general consensus is that employers are legally able to enforce a vaccine mandate for staff

Get your shot if you haven't
Thanks @Ziggy007
I ask because I saw an article where they quoted an employment lawyer as saying it was not possible to enforce such a mandate.
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CNeufeld wrote: My interpretation…. The ESA didn’t need the mandatory vaccine policy that allowed for termination because they could simply chose to put someone on unpaid leave instead. I don’t see how being on unpaid leave is a whole lot different than simply firing someone, but the arbitrator seemed to think that was a less damaging alternative.

C
I'm not the arbitrator but being on unpaid leave is a lot different than firing someone since one has a job to return to once the unpaid leave is over so if the health situation improves, I'm assuming one can return back to their job if one was placed on unpaid leave of absence for the vaccination reason. For example, where I previously worked, we had a policy where employees can take an unpaid leave (subject to manager's/company's approval) up to a specific amount of time. The number of employees locally was over 2000 employees. I don't know anyone within my immediate circle who ever applied for such a leave and was accepted/approved but most of the people I worked with at the time and at this company seemed to be living paycheque to paycheque or talked about bills, car payments, mortgage payments, etc. to me.

Where I'm currently working we also have an unpaid leave policy. I know one individual who requested an unpaid leave of absence for 6 months for educational reasons (wanted to take a 6 month course or certification programme) and it was refused. She subsequently quit.
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CNeufeld wrote: The quote I provided was from the last paragraph of the article you posted a link to. So no, not “making it up”.

C
Leave without pay is still employed. It does not mean "terminated" and automaticlly equate to "no severance".

In my view, you are taking a leap and mixing it with other policies, then taking it 1 to 2 steps further. Again, note, he takes into account the actual differences in workplace situations.

People who go on LWOP can come back anytime since it is not performance related is where he's putting the limit on it. Anything more, including termination is not allowed/unreasonable. The LWOP is not universal too as it should be more thought out based on situation.

Edit: I'll also add, he's very explicit on how it's administrated. Privacy is very important. Some unions have it where their managers and everyone on the team knows whereas he's saying it needs to be more thoughtfully administered taking into privacy and who has access to the status. I can say this is absolutely not being followed in many areas right now with th Unions.
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at1212b wrote: Leave without pay is still employed. It does not mean "terminated" and automaticlly equate to "no severance".

In my view, you are taking a leap and mixing it with other policies, then taking it 1 to 2 steps further. Again, note, he takes into account the actual differences in workplace situations.

People who go on LWOP can come back anytime since it is not performance related is where he's putting the limit on it. Anything more, including termination is not allowed/unreasonable. The LWOP is not universal too as it should be more thought out based on situation.

Edit: I'll also add, he's very explicit on how it's administrated. Privacy is very important. Some unions have it where their managers and everyone on the team knows whereas he's saying it needs to be more thoughtfully administered taking into privacy and who has access to the status. I can say this is absolutely not being followed in many areas right now with th Unions.
Dunno what your definition of "employed" is, but my definition typically involves doing work for a company and getting paid. Being on unpaid leave of an indefinite duration doesn't really count for me, but you do you. And I realize that my definition is not the legal definition, but for most people, sitting on their couch waiting for EI to run out (assuming they're eligible: https://www.benefitscanada.com/human-re ... r-ei-feds/) isn't a long term option. They would either need to look for another job or watch their savings dissipate. And there doesn't seem to be a light at the end of the COVID tunnel at the current point in time.

C
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CNeufeld wrote: Dunno what your definition of "employed" is, but my definition typically involves doing work for a company and getting paid. Being on unpaid leave of an indefinite duration doesn't really count for me, but you do you. And I realize that my definition is not the legal definition, but for most people, sitting on their couch waiting for EI to run out (assuming they're eligible: https://www.benefitscanada.com/human-re ... r-ei-feds/) isn't a long term option. They would either need to look for another job or watch their savings dissipate. And there doesn't seem to be a light at the end of the COVID tunnel at the current point in time.

C
You can still come back if you get vaccinated or the policy is changed at any time essentially. More time for reversals, appeals, etc.

Once you're actually terminated, you don't even have that option. And again, he said it should not be a blanket approach. Huge difference in what you were eluding to.

And that also means that person can get another job in the meantime and then go back. Again, I'm or he is not saying there's no chance that will happen, but the current one size fits all is not reasonable.
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The Government has implemented them in BC. So I am guessing they have grounds to do so. Or maybe they are just paying severance to those that have to be "let go"

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