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Howard Levitt: Battle Lines are Drawn as Anti-Vaxxers' Cases Show Mixed Rulings

posted 2 years ago

It has all been guesswork — until now.

Some lawyers have been trolling for clients, boldly advertising that anyone fired for refusing to vaccinate has an excellent case for wrongful dismissal. I have made clear in these pages that such representations were imprudent, in fact, negligent, and that such lawyers risked potentially being sued.

In addition, everyone with a valid exemption had to submit to weekly antigen testing, notably at their own time and expense.Finally, the policy made clear that anyone providing false information or abusing or violating the policy was subject to discipline up to termination for cause.In short, an aggressive policy covering all the bases.The union argued older cases involving a policy at St. Michael’s Hospital in 2014, requiring nurses to wear masks if they were not vaccinated from the flu.

As I have written previously, that case has little precedential value because the flu vaccine at the time had little reliability and, as Arbitrator William Kaplan then said: “If a better vaccine was available, the entire matter might be revisited.”

This compares to the COVID-19 vaccine with effectiveness of over 95 per cent. Arbitrator von Veh noted that COVID-19 was dramatically more contagious and deadly than the seasonal flu and that old decision did not deal with the pandemic conditions currently existing.This collective agreement contained a provision requiring vaccinations for those employees assigned to a customer site requiring vaccinations, which applied to many but not all sites. Although this provision was unique to this case and lawyers will try to differentiate other cases on that basis, the arbitrator appeared to give little, although some, weight to it in arriving at his conclusion.

In finding this policy to be enforceable, the Arbitrator relied on the provisions of the Occupational Health and Safety Act, requiring employers to take ”every precaution reasonable… for protecting its workers.”It found that implementing the vaccination policy satisfied that obligation and that, “the personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace the available scientific considerations and that this policy qualified as a reasonable rule and regulation.”The second case, which came out Thursday was from arbitrator John Stout who issued his decision right after the first ruling. He took the middle-ground approach arbitrators often do.

He came to the opposite conclusion and distinguished his award relating to Ontario-based Electrical Safety Authority’s unionized employees from arbitrator von Veh’s award, stating that, unlike in his case, the Paragon employees worked at client sites.He found that, in each case, personal rights to bodily integrity and privacy should be balanced with the actual risk to health and safety, employee rights to work in a safe workplace and the employer’s obligations under the Occupational Health and Safety Act.He found that ESA had moved from regular testings to those unvaccinated to mandatory vaccination without any discernible risk or reason requiring that, while acknowledging that testing is less effective than vaccination.But he found ESA had produced no evidence of any need for this change and no precipitating event or concerns which led to it. He noted that vaccinated employees only could be used when attending third-party premises without inconvenience as most employees were already vaccinated.

Although in light of the lack of evidence showing a need for such a policy, he struck down ESA’s policy permitting dismissal or unpaid leave for the unvaccinated. He added that if a need or risk subsequently developed, such that testing no longer provided sufficient protection, he would permit the employer to place the unvaccinated on unpaid leave until they were.

He concluded: “This award should not be taken as a vindication for those who choose not to get vaccinated. Those individuals are misguided and acting against their own and society’s best interests. They may also be placing their ability to earn a living in jeopardy. These individuals should not construe this award as a victory.”

The lesson from these two cases: Come armed with evidence and cogent reasons why mandatory vaccinations are necessary in the context of your workplace. ESA should have had that at the ready. If they did, it was clear they would have succeeded.

The battle lines are drawn with more decisions ahead.


Howard Levitt is senior partner of LSCS Law, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-battle-lines-are-drawn-as-anti-vaxxers-cases-show-mixed-rulings?video_autoplay=true


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