November 16, 2021

As grievances and cases regarding COVID-19 vaccination policies make their way through the arbitration and court system, guidance is becoming more clear for employers about the components and enforceability of such policies  

In a recent Client Update I reviewed the November 9th 2021 arbitration decision in which a Policy Grievance against Paragon Security, regarding the enforceability of mandatory vaccination policies, was dismissed.

The second decision in this matter was released on November 11, 2021, in which a different Arbitrator allowed the grievance of the Power Workers’ Union (PWU) against the Electrical Safety Authority (ESA) regarding the implementation of a mandatory COVID-19 Vaccination Policy. Click »» here to download a .pdf of the full Award.

Background
The Electrical Safety Association is responsible for public electrical safety in Ontario. The ESA arranges electrical inspections and provides permits upon inspections for customers whenever an electrician or contractor is doing work to install or change a service. 

The ESA’s Vaccination Policy, issued on October 5, 2021, required all employees to be fully vaccinated by December 22, 2021, or be subject to discipline, up to and including termination. Accommodation was provided for employees who were exempt from vaccination on the basis of protected ground under the Human Rights Code.  

Prior to October 5 the ESA had in place a voluntary vaccination disclosure and testing policy (VVD/T Policy). The PWU did not object to this VVD/T Policy and in fact were publicly supportive of the policy as being a reasonable workplace health and safety measure.

Submissions 
As in the Paragon arbitration, the matter concerned the interpretation of management rights in the collective agreement.

The Union submitted that the policy was unreasonable, and a significant over-reaching exercise of management rights, thus violating the collective agreement as well as employees’ privacy rights and right to bodily integrity.

The ESA denied any violation of the collective agreement, asserting that the introduction their mandatory COVID-19 Vaccination Policy was a reasonable exercise of management rights that fulfilled their legal obligations under the Occupational Health & Safety Act to take every reasonable precaution to protect their workers and the public.

There was no evidence presented that the existing VVD/T Policy was not effective at addressing health and safety concerns.

Arbitrator’s Decision
Arbitrator John Stout reviewed the ‘KVP Test’, which, as discussed in my  November 11th Client Update on the Paragon Security decision, sets out the scope of management’s unilateral, rule making authority under a collective agreement.

Unlike the Paragon decision where the Arbitrator found for the company and dismissed the Policy Grievance, Arbitrator Stout found that the ESA’s mandatory Vaccination Policy of October 5, 2021, “was unreasonable”.

He held that disciplining or discharging an employee for failing to be vaccinated, when it was not a requirement of being hired, and where there is a reasonable alternative, (vaccination combined with a testing alternative) was unjust. 

It was also unreasonable, at the time of the hearing to place employees on an administrative leave without pay if they do not get fully vaccinated. However, the arbitrator did note that this evaluation may change as the situation unfolds in the coming weeks and months. 

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He did not find it to be unreasonable for the ESA to require employees to confirm their vaccination status, as long as the personal medical information was adequately protected and only disclosed with their consent. 

The Arbitrator noted that employees must be cognizant of the fact that in the current circumstances they may be required to disclose their vaccination status to gain entry to third-party premises and the ESA’s offices. Employees may provide a general consent to disclosure of vaccination status in order to access third-party premises, or an employee may reserve the right to disclosure on a case-by-case basis.

Finally, he directed that the ESA refer their Vaccination Policy, and his award to the employer’s Joint Health and Safety Committee, for review and referral back to the Arbitrator if necessary.  

In coming to his decision the Arbitrator took into consideration workplace settings of a vulnerable population such as elderly or children who cannot be vaccinated, and noted that in these types of settings mandatory vaccination policies may not only be reasonable, but may also be necessary.

However, in other workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a reasonable less intrusive alternative such as the VVD/T Policy may be adequate to address the risks.

In a situation where a significant issue arises with respect to accessing third-party sites to perform work, then the ESA may have cause to place an employee on administrative leave until they are vaccinated.

The Arbitrator said without elaboration, that he had read the Paragon arbitration decision and that it could be distinguished from the ESA grievance.  I surmise that the vaccination requirement term in the  Paragon collective agreement, and the context of the vaccination policies would be the basis for distinguishing the two cases.  

Finally, the Arbitrator stated that his finding that the Vaccination Policy was unreasonable was as a result of the circumstances that were present at the time of the hearing, and that as we have seen with the pandemic, the circumstances could change. 

He also stated that he wanted to ensure that his decision was not seen as any form of vindication for those who chose, without a legal exemption under the Ontario Human Rights Code, not to get vaccinated. The choice of individual employees not to be vaccinated may result in consequences at a later date, and in different circumstances. Those who continue to refuse to be vaccinated are not just endangering their health but may also placing their employment in jeopardy.

Takeaways for Employers
The decision is one amongst the continually evolving COVID pandemic circumstances we face. 

It remains to be seen how arbitrators will decide in other circumstances. However, the ESA  decision does emphasize what I said in my Client Updates and webinar presentations regarding the introducing of a Vaccination Policy; that management must conduct an assessment of whether the terms of the policy are reasonable in the context of your particular workplaces. 

For unionized employers, this decision will be raised should your union file a Policy Grievance or an individual employee grievance. The case will be decided based on the assessment of whether your Policy was reasonable in the circumstances present at the time your Vaccination Policy was introduced. Employers will argue that their Vaccination Policy was reasonable in their circumstances and rely on the Paragon Security decision.

For non-unionized employers who terminate an employee for failing to comply with the requirement of your Vaccination Policy to be vaccinated, the issue will be whether management had ’cause’ to terminate the employee. Again, the issue will be one of whether termination of the employee was reasonable, given the circumstances the employer was facing in its response to the COVID situation in its workplace at the time of terminating the employee.

In light of the ESA decision, and the requirement for an employer’s actions to be reasonable, it is recommended that both unionized and non unionized employers consider whether the terms of your Policy are reasonable for your workplace, and consider having and using a provision for an unpaid leave, before you proceed to terminate an employee for not complying with your Vaccination Policy.

I hope you find this information helpful. Please contact me with assistance working through your employment and labour law matters.