More Arbitrators Rule on the Reasonableness of COVID-19 Vaccination Policies
Three recent decisions on COVID-19 vaccination policies have been issued, with mixed results. These decisions underscore how important the particular circumstances of a workplace are, as well as the terms of a collective agreement in determining the outcome of a challenge to a vaccine policy.
Power Workers’ Union and Elexicon Energy Inc (Mitchell)
In a decision issued on January 14, 2022, Arbitrator Mitchell upheld Elexicon’s vaccination policy, determining that Elexicon’s general requirement of its employees being fully vaccinated was reasonable.
The Policy
Elexicon introduced its vaccination policy on October 28, 2021, when the Delta variant of COVID-19 was the predominant variant circulating in Ontario. The policy required employees to confirm full vaccination status of having received two doses as well as get any additional vaccinations, including the third dose or “booster shot,” as recommended by governmental and/or healthcare authorities. Non-compliant employees would be restricted from entering Elexicon property and worksites and would be placed on an unpaid leave of absence; and depending on the circumstances, those employees could be subject to disciplinary action up to and including termination. Moreover, the policy provided that unvaccinated employees would become responsible for paying both for rapid antigen testing and $25 towards the cost of PCR tests administered onsite by Elexicon. Shortly after its implementation, the policy was grieved by the Power Workers’ Union (“PWU”).
The Decision
One critical aspect considered by Arbitrator Mitchell was that the policy was introduced when the Delta variant was the predominant variant, yet by the time this matter came on for hearing, Omicron had become the overwhelming dominant variant, whose onset and spread “created a very different dynamic and set of circumstances than those prevalent at the time the policy was issued and grieved”. This led to the current circumstances with the spread of Omicron taking on a greater significance than the parties’ experiences with the spread of the Delta variant, functioning as the critical background for consideration of the reasonableness of Elexicon’s policy.
Arbitrator Mitchell determined that the following two significant factors justified the mandatory vaccination policy as reasonable:
- under the Occupational Health and Safety Act, all employees have the right to a safe workplace and Elexicon, as the employer, had a duty to take every reasonable precaution in the circumstances to that end; and
- Elexicon provided the critical essential service of transmitting electricity to several communities and thus took the necessary steps to ensure that it could provide that service during a pandemic where there are real threats to the health and availability of its workforce.
Although Arbitrator Mitchell found the policy to be reasonable, some caveats were imposed. He held that the policy would not apply to unvaccinated employees who:
- have been working exclusively from home and for whom there is no expectation of a return to the office until April 2022 at the earliest;
- work exclusively outside; or
- can be accommodated such that they can work exclusively outside.
With respect to discipline and non-compliant employees, Arbitrator Mitchell expressed his expectation that Elexicon and the PWU discuss reasonable and workable accommodations and alternatives, and any disagreements or enforced discipline would remain subject to arbitral review. Finally, with respect to the dispute about who should bear the cost of testing, Arbitrator Mitchell found it was unnecessary in the circumstances and at this time to determine the issue. That was because compliant employees would not need to pay for testing and non-compliant employees would not be subject to testing because they would be placed on an unpaid leave or disciplined. As for accommodated employees who may require testing, Arbitrator Mitchell left it to the parties to determine who would bear those costs. However, he remained seized to deal with the issue, if necessary.
Hydro One Inc and Power Workers’ Union (Stout)
In a decision issued on January 31, 2022, Arbitrator Stout dismissed the grievances of the Power Workers’ Union (the “PWU”) and upheld Hydro One Inc.’s (“Hydro One”) COVID-19 vaccination policy as reasonable.
The Policy
Hydro One introduced its vaccination policy, requiring all employees to provide proof of vaccination status, confirmation of an authorized exemption, or confirmation of declining to disclose their vaccination status. Employees who declined to disclose or were unvaccinated would be required to undergo regular rapid antigen testing prior to reporting for work. Non-compliant employees would be placed on an unpaid leave of absence until they complied.
The Decision
Arbitrator Stout held that prohibiting non-compliant employees from attending work was fair and reasonable in the circumstances of the pandemic, as Hydro One was “complying with their legal obligations under the Occupational Health and Safety Act to take reasonable precautions to protect the health and safety of their employees and the public that they serve.” Thus, the policy was a reasonable compromise that respected employee rights and balanced various interests. Arbitrator Stout also ruled that offering accommodation via remote work was unnecessary in this case, as most of the grievors could not perform their work remotely and the reasonable alternative of undergoing regular rapid antigen testing was already being provided.
In a decision issued on February 7, 2022, Arbitrator Gail Misra upheld the grievances of the Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (“HOPE”), finding the disciplinary aspect of Chartwell Housing REIT’s (“Chartwell”) mandatory vaccination policy – that is, making failure to get vaccinated a disciplinary offence – to be unreasonable and a violation of the parties’ collective agreement.
The Policy
In September 2021, Chartwell implemented its “Mandatory COVID-19 Vaccination Policy for Staff, Students and Volunteers,” requiring all employees to be fully vaccinated and provide proof of vaccination or an authorized exemption. Failure to comply would result in being placed on an unpaid administrative leave or might result in termination. By October 1, 2021, the Minister of Long-Term Care had issued a Directive, making COVID-19 vaccinations mandatory for all staff working in long-term care homes.
The Decision
Arbitrator Misra assessed the reasonableness of Chartwell’s vaccination policy. She was satisfied that the policy was clear and unequivocal, brought to the attention of all bargaining unit employees before being acted upon, and had been consistently applied since its implementation, as well as satisfied that potentially affected employees had been advised of the possibility of being terminated for non-compliance with the policy.
However, Arbitrator Misra determined that the policy was unreasonable and inconsistent with the collective agreement governing Chartwell and HOPE to the extent that it contemplated the disciplinary penalty of termination for non-compliant employees. In terms of unreasonableness, given the turbulent environment caused by the pandemic, Arbitrator Misra believed that “the two months that [Chartwell] waited before terminating the non-compliant employees was a very short time in which to make an irrevocable decision to terminate the employment of fourteen employees for being unvaccinated,” and held that “in the absence of evidence of any necessity or operational effect on the homes it is difficult to find that the termination provision of the policy is reasonable.” The Arbitrator considered a provision in the Collective Agreement which provided that, “[e]xisting rights, privileges, benefits, practices and working conditions shall be continued to the extent that they are more beneficial and not inconsistent with the terms of this Collective Agreement unless modified by mutual agreement of the Employer and the Union.” Arbitrator Misra found that the parties’ existing practice of placing non-compliant bargaining unit members on an unpaid leave of absence was more beneficial and consistent with the collective agreement, yet Chartwell had unilaterally changed this to include the possibility of termination without HOPE’s approval.
In finding this disciplinary aspect of the policy to be unreasonable and in violation of the parties’ collective agreement, Arbitrator Misra ordered Chartwell to abide by the terms of the collective agreement as well as strike the statement “or may have their employment terminated,” as it applied to the HOPE bargaining unit members, from its vaccination policy.
Significance
The mixed results of these decisions confirm that the assent of reasonableness of a vaccination policy is highly contextual, involves the balancing of interests, will vary from workplace to workplace, and may continue to change as circumstances of the pandemic change. In general, arbitrators are acknowledging employer’s legal obligations under the Occupational Health and Safety Act as well as issued medical directives to protect their employees and provide a safe workplace. While there appears to be a broad acceptance of placing employees on unpaid leaves of absence as a consequence of non-compliance, inclusion of the possibility of termination may push an otherwise reasonable policy into the realm of unreasonable.
For advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.
We will continue to monitor workplace related COVID-19 developments and provide further updates as information becomes available.
Rae Christen Jeffries LLP