Arbitrator Upholds Termination Imposed Following Non-Compliance with COVID-19 Vaccinate-or-Test Policy

As arbitral decisions on COVID-19 vaccination policies continue to trickle out, providing employers with much needed guidance in respect of the reasonableness of such policies in the workplace, we would like to highlight a recent decision involving Emond Harnden’s very own Porter Heffernan as counsel. As will be detailed below, in Algoma Steel Inc. and The United Steelworkers Local 2251, Porter successfully argued that a termination instituted in the context of an employee’s failure to comply with a COVID-19 vaccinate-or-test policy should be upheld.

Background

Algoma Steel Inc. (“Algoma Steel”) is an integrated primary steel producer located in Sault Ste. Marie, Ontario. Deemed an essential service, Algoma Steel’s operations continued throughout the pandemic. Luckily, Sault Ste. Marie and the District of Algoma experienced relatively low levels of COVID-19 until approximately October of 2021, at which time case numbers began increasing as a result of the surge in the highly transmissible Omicron variant.

Despite the fact that Algoma Steel implemented a variety of health and safety risk mitigation strategies to protect its employees throughout the pandemic, it experienced a number of COVID-19 outbreaks, including one in September of 2021. Accordingly, on October 18, 2021, Algoma Steel announced the implementation of a COVID-19 vaccination policy (the “Policy”). Pursuant to the Policy, all employees would be requested to submit a completed vaccination status declaration form, and for those employees that were partially or fully vaccinated, to provide proof of vaccination to the company’s Group Health Centre.

Between November 13, 2021 and December 9, 2021, Algoma Steel experienced another COVID-19 outbreak. Consequently, on December 1, 2021, Algoma Steel announced the implementation of the “Eligibility Requirement to Attend on Site in Response to the COVID-19 Pandemic” (the “Revised Policy”). Pursuant to the Revised Policy, all employees, as well as contractors and visitors, would only be granted access to company property as of January 1, 2022 if they could meet the following conditions:

  • They could affirm that, at the time of entry, they are asymptomatic and capable answering “No” to each of the questions in the company’s self-screening tool, and
  • They had available proof of vaccination against COVID-19, having received all doses and met all applicable waiting periods required to be considered fully vaccinated as defined by Health Canada or proof of a negative COVID-19 rapid antigen test or PCR test result, with testing completed once per rotation and within 72 hours of the start of the rotation.

The Revised Policy indicated that non-compliance would result in an individual’s exclusion from company property. It further indicated that any excluded employees would be placed on a temporary unpaid leave of absence for a period of two (2) weeks, following which they may be subject to discipline up to and including termination of employment for just cause.

On December 22, 2021, the Revised Policy was amended in order to address the increased risk of transmission posed by the Omicron variant. However, these changes related only to the frequency and timing of COVID-19 testing. Notably, in an effort to facilitate these more stringent COVID-19 testing requirements, Algoma Steel took steps to arrange for testing on site, as well as in local pharmacies.

The Grievance

At the time of his termination, the grievor was a Trackman in the company’s transportation department, a position which required him to attend at Algoma Steel’s property in order to fulfill his job duties. Despite this, in late December of 2021, the grievor communicated to his supervisor and to the company’s human resources department that he had no intention of being vaccinated or of being tested in compliance with the Revised Policy. As a result, between December 31, 2021 and January 11, 2022, the grievor was not permitted to be present on company property and missed all of his scheduled shifts.

In light of the grievor’s ongoing absence from work, Algoma Steel’s human resources department advised the grievor in writing that being absent from work in excess of two (2) weeks and/or ten (10) consecutive shifts without reasonable excuse would trigger the deemed termination provision in the collective agreement. In the result, the grievor was informed that his continued non-compliance with the Revised Policy and related exclusion from company property would result in the termination of his employment on that basis. The grievor made no subsequent effort to comply with the Revised Policy, nor to request an exemption from the Revised Policy on protected human rights grounds and, consequently, his employment was terminated on January 26, 2022. The union grieved the termination, seeking to have the grievor reinstated.

The Decision

Before Arbitrator John C. Murray, the union did not dispute the reasonableness of the Revised Policy. Instead, it argued that the grievor’s termination should be treated as disciplinary and that Algoma Steel did not have just cause to terminate in the circumstances. It further argued that in the context of a disciplinary termination, Arbitrator Murray had jurisdiction to modify the disciplinary penalty imposed by Algoma Steel, and should do so.

For its part, Algoma Steel argued that, notwithstanding the warning regarding discipline contained in the Revised Policy, the grievor’s termination had flowed from the application of the deemed termination provision in the collective agreement. It further argued that no relief of a contractually “deemed termination” was warranted – or even permissible – in the circumstances because the union had failed to establish a reasonable excuse for the grievor’s extended absence.

Ultimately, Arbitrator Murray accepted Algoma Steel’s position that the termination was not in fact disciplinary, but flowed from the application of the deemed termination provision in the collective agreement. He noted that the Revised Policy stated only that non-compliant employees “may” be subject to discipline. In his view, then, although the language of the Revised Policy served as a clear warning that non-compliance could potentially result in discipline, Algoma Steel had not committed itself to discipline. Finally, he noted that the grievor had been given an explicit written warning of the company’s intention to rely on the deemed termination provision in the collective agreement prior to his termination.

With the foregoing in mind, Arbitrator Murray found that the grievor’s refusal to be tested was not a reasonable excuse to be absent from work and consequently, that his employment was properly deemed terminated. Interestingly, he indicated that even if this had been a disciplinary case, he would not have modified the discipline imposed on the grievor in the absence of evidence that he might have changed his position in respect of compliance with the Revised Policy.

In Our View

It appears that this arbitral decision constitutes one of the first in Ontario involving the termination of an employee in the context of non-compliance with a COVID-19 vaccinate-or-test policy. It is important to note, however, that in this case, the termination was based on a pre-existing provision in the collective agreement, and not on the application of the policy itself. In the result, at this point in time, we still have yet to see any arbitral decisions dealing with terminations imposed specifically based on a mandatory COVID-19 vaccination policy.

For more information, please contact Porter Heffernan at 613-940-2764.

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