Taking the good with the bad: An overview of recent Ontario arbitral decisions on COVID-19 vaccination policies in unionized settings
Many Ontario workplaces have implemented or are in the process of implementing mandatory COVID-19 vaccination policies for their employees. In unionized settings, such policies have been challenged on the basis that requirements for employees to be fully vaccinated against COVID-19 to access workplace facilities or maintain their employment with the company, or to pay for their own COVID tests, is contrary to the terms of the applicable Collective Agreement and human rights legislation.
In response to these challenges Ontario labour arbitrators have upheld some vaccination policies but not others. In each case, however, labour arbitrators conducted a balancing exercise to determine whether the employer’s vaccination policy satisfied the following requirements:
- The policy must not be inconsistent with the collective agreement;
- The policy must not be unreasonable;
- The policy must be clear and unequivocal;
- The policy must be brought to the attention of the employee affected by the policy before the employer can act on it;
- The employee concerned must have been notified that a breach of the policy could result in his discharge if the rule is used as a foundation for the discharge; and
- Such policy should have been consistently enforced by the company from the time it was introduced.
The remainder of this article discusses the recent application of these criteria in recent Ontario arbitral decisions.
United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd.: COVID-19 vaccination policy upheld
In this case, the employer (who provided security services) issued a notice to its employees of its new COVID-19 Vaccination Policy and COVID-19 Exemption Policy on September 03, 2021, which required employees to be fully vaccinated by October 31, 2021 to remain actively employed, unless they qualified for a valid exemption. Notably, Paragon Protection’s collective agreement contemplated reassignment if an employee were to refuse a required vaccination.
The Union filed a grievance, alleging that the two policies violated the Ontario Human Rights Code and the collective agreement, arguing that the COVID-19 vaccination policy forced employees to be vaccinated against their will, contrary to the Health Care Consent Act, SO 1996 (“HCCA”) (which provides that a health practitioner must not administer a treatment unless the person has given their consent). The Union also relied on the 2018 award by Arbitrator Kaplan in St. Michael’s Hospital v Ontario Nurses’ Association, where Arbitrator Kaplan declined to uphold a vaccinate-or-mask policy that required health care workers to either receive the annual influenza vaccine or wear masks in areas where patients were present during flu season.
In response the employer argued that implementing the COVID-19 vaccination policy was an operational necessity to properly service its clients, and to maintain a safe workplace for employees, clients, and the public. The employer also argued, and Arbitrator Von Veh agreed, that the HCCA was not applicable as the employer did not qualify as a “health care practitioner,” and because the employer did not force its employees to be vaccinated without their consent.
Arbitrator Von Veh held that the employer’s COVID-19 vaccination policy was reasonable, enforceable, and compliant with the Ontario Human Rights Code and Occupational Health and Safety Act (“OHSA”). Arbitrator Von Veh distinguished Arbitrator Kaplan’s award as it was not decided based on up-to-date scientific facts applicable to the current circumstances of the COVID-19 pandemic, as well as on the differences between COVID-19 and seasonal influenza. Arbitrator Von Veh found that the employer’s policy struck an appropriate balance between the rights of employees who do not wish to be vaccinated, the right to a safe workplace, and the health concerns of the employer’s clients and the public. As the employer has an obligation and responsibility to protect the health and safety of its employees pursuant to section 25(2)(h) of the OHSA, introducing the COVID-19 vaccination policy was a reasonable precaution to satisfy its obligation. The union’s grievance was dismissed.
Ontario Power Generation v The Power Workers’ Union (Re: OPG-P-185): Grievance allowed in part
Arbitrator J. C. Murray’s November 8, 2021, decision is another example of an arbitral decision where a COVID-19 vaccination policy was upheld and found to be reasonable - although in this case the employer was required to pay the out of pocket cost of a testing alternative. Ontario Power Generation (“OPG”) implemented a COVID-19 Response Instruction (the “Instruction”), pursuant to which unvaccinated individuals and those who decided not to disclose their vaccination status were required to submit to rapid antigen testing once a week for an initial period, followed by twice per week thereafter. The purpose of the Instruction was “to assist OPG in mitigating the risk of harm from, or transmission of, COVID-19 in the workplace”. Employees who refused to participate in the rapid antigen testing program would be placed on a temporary unpaid leave of absence for six weeks, following which their employment would be terminated for cause if the employees continued to refuse to participate in the program.
The testing program was designed such that the employees would have to self-administer the rapid antigen tests, video-record themselves administering the tests and take a picture of the test results. They would then have to upload this footage onto an online portal on their own time. Additionally, unvaccinated employees were required to pay to OPG an amount of $25 per week to cover the cost of administration of the testing program and running of the portal. Otherwise, the employees would have to procure their own testing kits and upload the results onto the portal.
The Power Workers’ Union (“PWU”) grieved on the basis that requiring the employees to pay for the tests and verify results on their own time to fulfil OPG’s obligations (i.e., to provide a safe workplace) imposed an unreasonable financial burden upon employees.
With respect to the leave-of-absence issue, the PWU took the position that OPG could not place employees on unpaid leave of absence pending the completion of the disciplinary process, since the collective agreement expressly provided that “disciplinary penalties resulting in a suspension without pay will not be imposed until a final decision (agreement between the Union and Management) has been reached.”
The grievance was allowed in part. Despite the burden on employees, Arbitrator Murray held that there are advantages to having the testing performed by employees on their own time: For instance, OPG would know before the employee enters the workplace if there is a positive test result and could take immediate action. Additionally, self-administering the tests was more efficient compared to the employees having to leave work and return each time a test was needed. Finally, Arbitrator Murray reasoned that compensating employee for testing would act as a disincentive for getting vaccinated. To strike a balance between the interests of OPG and the employees, Arbitrator Murray held that the tests should be paid for by OPG but refused to grant an order for OPG to compensate the employees for time spent administering the tests.
Arbitrator Murray also disagreed with the PWU’s position on the unpaid leave of absence and held that “In a situation where most employees have been vaccinated, and virtually all the rest are willing to participate in the reasonable alternative of regular testing, employees who refuse to do either can be sent home on unpaid leave pending completion of the discipline process.” Arbitrator Murray reasoned that all an employee needs to do to return to work is to agree to participate in the safe and effective testing program, which is within the employee’s control. “Individuals who are fired for choosing not to be tested” have effectively “made a decision to end their career with [the Employer]” and will likely “find the termination of their employment upheld at arbitration.”
The PWU also grieved OPG’s decision to restrict gym access for unvaccinated employees. In dismissing this aspect of the grievance, Arbitrator Murray reasoned that the same logic that has informed the Ontario government to require patrons to be fully vaccinated in the context of gyms accessible to the public would apply here.
Electrical Safety Authority v Power Workers’ Union: Grievance allowed
In contrast, Arbitrator J. Stout’s November 7, 2021, decision partially upheld a grievance brought by the PWU because of the Electrical Safety Authority’s (“ESA’s”) introduction of a new COVID-19 mandatory vaccination policy that no longer allowed employees to choose between obtaining full COVID-19 vaccination or submitting to regular antigen testing.
Prior to October 5, 2021, the ESA had a COVID-19 vaccination policy in place that allowed employees who did not voluntarily disclose their vaccination status to be tested on a regular basis (the “VVD/T Policy”). The PWU supported the VVD/T Policy. No evidence was presented to suggest that the VVD/T Policy was not effective at addressing ESA’s health and safety concerns. There was also no evidence of any substantial interference with ESA’s business or any actual problems in the workplace that could not be addressed via the VVD/T Policy. Most ESA employees were also working remotely at the time the mandatory COVID-19 vaccination policy was implemented. The PWU asserted that the new COVID-19 vaccination policy was unreasonable, was a significant over-reach of management rights, and violated the collective agreement, the employees’ privacy rights, and the employees’ right to bodily integrity.
Arbitrator Stout noted that an individual’s right to privacy and bodily integrity must be balanced against the right of all employees to have a safe workplace, and distinguished the ESA’s workplace from other workplaces where mandatory COVID-19 vaccination policies may be reasonable. Arbitrator Stout stated that, in high-risk workplaces where the population is vulnerable (i.e., sick or elderly), mandatory vaccination policies may be both reasonable and necessary to protect that vulnerable population. However, where employees can work remotely or there is no significant risk related to an outbreak, then a less intrusive alternative, such as voluntary vaccination disclosure and testing, may be more appropriate.
Arbitrator Stout found that “the ESA had done a tremendous job of protecting their employees.” The ESA had not experienced any workplace outbreaks, and in fact, since the beginning of the pandemic, only seven employees (out of 400) had contracted COVID-19. Of those seven, only two cases were found to potentially be work-related, and those cases had both occurred before COVID-19 vaccines were available to the general population. However, unlike in Paragon Protection there was nothing in ESA’s collective agreement that specifically addressed vaccinations. ESA had not previously required any employees to be vaccinated as a condition of employment, and no authority had been provided to the arbitrator for upholding a mandatory vaccination policy (without specific collective agreement language or legislative authority) outside of a healthcare or long-term care setting.
Arbitrator Stout held that it would be unjust and unreasonable to discipline or discharge an employee for failing to be vaccinated when vaccination is not a job requirement and reasonable alternatives (such as testing) are available. Therefore, parts of the policy that aimed to discipline employees for being unvaccinated, including putting them on administrative leave without pay, were quashed. Arbitrator Stout directed ESA to amend the COVID-19 vaccination policy to clarify that employees would not be disciplined or discharged for failing to get vaccinated, and to provide an option for testing to those who had not been vaccinated. However, Arbitrator Stout noted that if safety problems arose in the future that could not be addressed through the current regime, then ESA may (with reasonable notice) place unvaccinated employees on administrative leave without pay.
In contrast to his decision on mandatory vaccination, Arbitrator Stout held that it was not unreasonable for ESA to require employees to confirm their vaccination status if this information was sufficiently protected and only disclosed with their consent. As such, the portions of the policy that required all employees to disclose their vaccination status were upheld, and the employees were given the option to provide a general consent to disclosure (to access third-party premises), or to provide disclosure on a case-by-case basis.
In Ontario, labour arbitrators have been more likely to uphold an employer’s COVID-19 vaccination policy where the policy was implemented because of an operational necessity or where a vaccine requirement was supported by clear language in the collective agreement. For instance, in Paragon Protection, most of the work performed by employees took place at third-party sites where mandatory vaccination policies had already been implemented. On the other hand, where most employees worked from home and there was insufficient evidence that their unvaccinated status caused any major problems or interference with the employer’s business, such as in Electrical Safety Authority, a mandatory vaccination policy was found to be unreasonable.
Factors considered also included the risk of contagion, the vulnerability of the client population, and legislative authority supporting the implementation of vaccination mandates. Where the employer’s policy was found to be more in line with rules put in place by the Ontario government (such as in OPG’s case), the policy was more likely to be upheld. The availability of a reasonable alternative to vaccination, such as regular rapid antigen testing, was also a factor that favoured the enforceability of vaccinate-or-test policies over mandatory vaccination policies.
While vaccination policy cases are very sensitive to the specific factual context of each case, the decisions discussed in this article suggest that strictly mandatory COVID-19 vaccination policies may be more difficult to uphold in low-risk workplace environments and in the absence of legislative authority supporting the implementation of strictly mandatory vaccination policies.
For further information and assistance navigating the requirements of a post-pandemic world, please consult our Coronavirus Resource Centre or contact any of the members of the DLA Piper Canadian Employment and Labour Law Service Group listed here.
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