Readers of Focus will be familiar with the recent and numerous arbitral challenges to employers’ mandatory vaccination policies. These cases show that arbitrators focus on the specific context and workplace circumstances in assessing the reasonableness of any such policy. This approach is continued in two of the most recent arbitral decisions in this evolving area: The Toronto District School Board and CUPE, Local 4400 (March, 2022) and Unifor Local 973 and Coca-Cola Canada Bottling Limited (March, 2022).
The Toronto District School Board and CUPE, Local 4400
On September 14, 2021, the Toronto District School Board (TDSB) implemented a mandatory vaccination policy (Policy) requiring employees with direct contact with staff or students at a TDSB workplace to be fully vaccinated against COVID-19 (two doses of an approved vaccine). The Policy further required that all employees provide evidence of vaccination by November 1, 2021 or establish that they had a valid medical or Human Rights Code (Code) exemption.
Employees that failed to comply with the Policy requirements were to be placed on non-disciplinary leaves of absence without pay. More than sixty policy, group and individual grievances were filed in respect of the Policy. By agreement of the parties, two principal issues were to be determined:
- Whether mandatory vaccination infringes Section 7 of the Charter of Rights and Freedoms (Charter) which protects life, liberty and security of the person, and if so whether it is saved by Section 1 (with any Section 1 review to proceed later if necessary); and
- Whether the Policy was reasonable including especially vaccine attestation and the placing of non-compliant/unvaccinated employees on non-disciplinary leave without pay.
Both parties to the arbitration relied heavily on expert evidence. The thrust of the Union’s evidence was that a random antigen testing (RAT) regime could be an effective substitute to vaccination in combating infection and the spread of COVID-19 in the workplace. The Union argued that, given this safe alternative, employees of the TDSB should not be denied the right to choose what drugs were injected into their bodies, such right being protected under Section 7 of the Charter. The Union asserted that the Policy was in conflict with the Charter as it was arbitrary, overbroad and disproportionate to its objectives.
The Employer’s expert evidence demonstrated that a RAT program would not be as effective as mandatory vaccination. It further noted that no one’s right to life, liberty, or security of the person was limited or negatively engaged by the Policy. No one was required to get vaccinated without their consent and employees had a choice. The fact that financial consequences, including loss of employment, could result from an employee’s choice did not engage the Charter as there is no protection for economic interest (including an individual’s right to maintain a chosen profession or occupation).
In his decision, Arbitrator Kaplan noted that the experts agreed on almost everything except the effectiveness of a RAT program. On this point, the Arbitrator preferred and accepted the expert evidence of the Employer, noting that there was an absence of evidence that RATs reduce transmission in the workplace, and that there was no way of ensuring the integrity of a self-administered RAT program. The Arbitrator went on to state that given the TDSB’s congested workplaces, and the evidence that vaccination is both safe and more effective than RATs in reducing the spread of COVID-19, it would have been “derelict” for TDSB to ignore the vaccines and the benefits of full vaccination in giving effect to its statutory obligations.
Arbitrator Kaplan went on to find that the Policy did not infringe section 7 of the Charter. He noted that Section 7 of the Charter does not insulate a person who chooses not to get vaccinated from the economic consequences of that decision. The Policy did not mandate a medical procedure or seek to impose one without consent. While the Policy had an impact on employees that did not attest and/or get vaccinated, the Arbitrator found that there was no impairment to anyone’s life, liberty or security of the person.
Arbitrator Kaplan’s decision went on to conclude that there was no violation of the principles of fundamental justice. The Employer’s Policy sought to protect the health and safety of employees and students and was based on the “completely persuasive” medical evidence that full vaccination was the best means available to prevent contractions and transmission. Arbitrator Kaplan found that the Policy was neither arbitrary nor overly broad, and that it went only so far as necessary to achieve its objective. The consequences of non-compliance with the Policy were purely economic, and, in Arbitrator Kaplan’s view, proportionate to the objective of preventing transmission of COVID-19 to employees and students in TDSB schools.
Arbitrator Kaplan’s decision next discussed whether the Policy was a reasonable exercise of management rights. In this regard, the specific context relating to the TDSB was set out including that vaccination was necessary to protect extremely vulnerable populations such as unvaccinated students; and that a RAT regime could not achieve the same outcome. Given the Employer’s Occupational Health and Safety Act (OHSA) obligation to take every precaution reasonable in the circumstances for the protection of the worker, the requirement that employees be fully vaccinated was found to be a reasonable precaution in the circumstances and in compliance with the OHSA.
Arbitrator Kaplan’s decision noted that the same conclusion resulted from the application of the principles in the seminal decision relating to a management rule or policy, KVP & Lumber/Sawmill Workers’ Union (1965) (KVP). KVP requires that a management rule or policy:
- not be inconsistent with the collective agreement;
- not be unreasonable;
- be clear and unequivocal;
- be brought to the attention of employees before the employer can act upon it
- affected employees must be notified that breach could result in discharge if the policy was being used as foundation for discharge; and
- must be consistently applied.
In applying these principles, Arbitrator Kaplan found that the Policy was based on medical evidence and was reasonable, clear and unequivocal. The exemptions for essential workers, and for employees with human rights claims, demonstrated that the Policy was being applied in a careful and nuanced fashion.
Arbitrator Kaplan concluded that the Policy did not violate Section 7 of the Charter and was a reasonable exercise of management rights (subject to any individual claims respecting requested medical/creed exemption requests should they proceed).
UNIFOR Local 973 and Coca-Cola Bottling Limited
In an arbitral grievance with a similar result, Arbitrator Wright considered the mandatory vaccination policy of Coca-Cola. By way of background, on October 26, 2021, Coca-Cola announced a nationwide COVID-19 vaccination policy (Policy) that required employees to be fully vaccinated by January 1, 2022, or face workplace consequences.
The Policy was clearly communicated to employees in direct correspondence and in “Crew Talks.” The workplace consequences of not being vaccinated by January 1, 2022, were progressive. On December 7, 2021, employees were advised that as of January 3, 2022, unvaccinated employees would have to wear face shields over their masks when on site or in the field, and as of January 17, 2022, unvaccinated employees would have to submit to a mandatory rapid testing program on their own time but at the Company’s expense. Employees were advised at the time that unvaccinated employees may also be subject to additional protocols including leave without pay, and possibly discipline including termination. This message was reiterated in Crew Talks beginning December 7, 2021. On January 12, 2022, in an email to all employees, the Company advised that unvaccinated employees would be placed on an unpaid administrative leave of absence effective January 31, 2022. Non-compliant employees each received a letter at their homes advising them of the same and reiterating that they were potentially subject to further consequences including the possibility of significant discipline and/or termination if they remained non-compliant. As of the date of the decision, 48 employees at the Brampton facility were placed on unpaid administrative leave however no employee had been subject to discipline.
In considering whether the Policy was reasonable, Arbitrator Wright scrutinized the specific contextual facts applicable to the workplace. These included the fact that employees were required to attend the workplace to do their jobs, and that the majority of employees work in close contact with one another or with customers or members of the public. The Arbitrator also paid particular attention to the impact of the pandemic on Coca-Cola’s operations noting that two employees died from the disease; 870 employees tested positive since the beginning of the pandemic, 224 of those cases coming from union and non-union staff at the Brampton facility; two facilities were fully closed and two partially closed at various times costing the Company millions in lost production. Arbitrator Wright further noted that the impact of the virus got worse over time with the advent of the Delta and Omicron variants resulting in a six-fold increase in the number of hospitalizations of employees from 2020 to 2021; in January of 2022 alone, 409 Company employees tested positive for COVID-19 (approximately 13% of the workforce), the most by far of any month in the pandemic.
Based on these facts, the Arbitrator found that the Policy established a reasonable balance between an employees’ right to privacy and bodily integrity, and the Employer’s right and statutory obligation to protect the health and safety of the workplace. In Arbitrator Wright’s view, it was therefore reasonable to put non-compliant employees on unpaid administrative leave effective January 31, 2022.
In coming to this conclusion, the Arbitrator distinguished the decision in Electrical Safety Authority v. PWU (ESA), which held that a mandatory vaccination policy was unreasonable because less intrusive means such as enhanced PPE, and rapid antigen testing were sufficient to keep employees safe at work. Arbitrator Wright distinguished the ESA decision for three reasons:
- unlike in ESA, none of the employees in this case can work remotely and the majority work in close contact with one another or with customers or members of the public;
- a combined vaccination and testing regime previously implemented by Coca-Cola failed to keep the workplace safe; and
- the decision in ESA predated the advent of the far more contagious Omicron variant, for which the RATs are less sensitive and therefore less effective.
In his decision, the Arbitrator stated that an employee’s personal beliefs – however strongly held – must give way to the health and safety concerns that animate the Policy and furthermore that an employee’s personal beliefs cannot override the Employer’s interest in doing everything possible to maintain the health and safety of the workplace.
Arbitrator Wright went on to state that the Policy, including the placement of non-compliant employees on leave of absence without pay, was reasonable and enforceable and not in violation of the collective agreement. At the request of the parties, Arbitrator Wright also found that no discipline should be issued for failing to become vaccinated before April 4, 2022, in order to permit non-compliant employees an opportunity to become compliant.
In Our View
The TDSB and Coca-Cola decisions follow the recent trend that recognizes that mandatory vaccination policies are both reasonable and enforceable in certain circumstances. These decisions are characterized by a careful consideration of the specific context and facts applicable to the particular workplace; and a recognition of the efficacy of full vaccination in achieving the employer’s OHSA obligation to take every precaution reasonable in the circumstances for the safety of workers. While these decisions are useful for employers, whether a particular policy is reasonable will always depend on the specific circumstances in each case. Employers will want to consider their full context in assessing the reasonableness of having such a policy, including the state of the pandemic and its variants.