Arbitrator Overturns COVID-19 Vaccination Policy

In a decision released on November 11, 2021 in the Ontario case of Power Workers’ Union v Electrical Safety Authority, Labour Arbitrator John Stout found the Employer’s Vaccination Policy was unreasonable to the extent that employees may be disciplined, discharged, or placed on unpaid leave for failing to get fully vaccinated.

Unlike the other arbitration award from November 9, 2021 that we reported on dealing with vaccinations (UFCW, Canada Local 333 v Paragon Protection Ltd.), there was no requirement in this collective agreement for employees to be vaccinated. The Arbitrator also noted that there is no legislated requirement for vaccination and no case law requiring vaccination outside of a healthcare or long-term care setting. This Arbitrator took note of the Paragon Protection decision and correctly distinguished it.

The Arbitrator applied a “balancing of interests” approach. Context is crucial to this analysis.

Some of the relevant context in this case included the following:

• the Employer had not had a breakout in its workplace
• only 7 of 400 employees had contracted COVID-19, and only 2 of those were possibly work related
• over 88% of employees had already been vaccinated
• the Employer had allowed COVID testing as an alternative to vaccination until October 2021, and there was no evidence such measures were ineffective (it is a reasonable tool)
• much of the work in question could be done remotely
• unvaccinated employees could be assigned work when problems with access to third-party sites or travel arise.

The Arbitrator found that in workplaces where the risks are high and there are vulnerable populations, mandatory vaccination policies may not only be reasonable, but necessary. However, in workplaces where there is no specific problem or significant risk related to an outbreak, then a reasonable less intrusive policy, such as testing, may be adequate.

Ultimately, the Arbitrator found the Employer was hasty and did not consider whether its concerns would manifest themselves in serious workplace problems using a policy that combines vaccination with a testing alternative. It was unjust to discipline or discharge an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative. The Employer could not terminate an employee for breach of an unreasonable rule.

The Arbitrator directed the Employer to amend the Vaccination Policy to make clear employees cannot be disciplined or discharged for failing to get vaccinated and to provide for a testing option for unvaccinated employees.

The Arbitrator found it was reasonable for the Employer to require employees to confirm their vaccination status, as long as the personal medical information is adequately protected and only disclosed with consent.

The Award also found it is reasonable to require disclosure of vaccination status in order to access third-party premises.

The Arbitrator noted that the assessment of risk and what is a reasonable measure may change over time, and he allowed for the possibility of the Employer taking further steps (such as placing employees on administrative leave without pay), or returning to the Arbitrator, if circumstances changed and the testing option presented unacceptable risks.

Finally, the Arbitrator required that the Vaccination Policy and the Arbitration Award be referred to the Joint Health and Safety Committee in the workplace for further review.

Although disallowing the Policy, the Arbitrator made clear that this case was not about the merits of being vaccinated and was not vindication for people who choose not to get vaccinated without a human rights exemption. However, the Arbitrator pointed out that it is for governments to address general public health issues, not employers.

Overall, this decision indicates that testing is a reasonable alternative to mandatory vaccination in workplaces that do not involve vulnerable populations. While mandatory vaccination may be convenient, it is not the only option. Employers are wise to consider alternatives or must be prepared to produce persuasive evidence demonstrating why testing has proved ineffective.