Since late 2021, several arbitral awards have addressed a union’s challenge to an employer’s mandatory COVID-19 vaccination policy through the grievance and arbitration process. Focus Alert readers will recall our past articles discussing these cases, including Paragon Protection Ltd., Electrical Safety Authority and Bunge Hamilton Canada. In particular, readers will recall that throughout these awards, arbitrators were largely erring on the side of caution and minimizing health risks to employees and the public in upholding employers’ mandatory COVID-19 vaccination policies.
As the pandemic continues to affect daily life, we have seen numerous additional arbitral awards addressing similar challenges. The following article is intended to provide an update on arbitral challenges to employers’ mandatory COVID-19 vaccination policies through January and early February of 2022. As will be detailed, arbitrators continue to err on the side of caution in upholding many such policies. That said, the most important lesson to be drawn from these decisions is that what constitutes a reasonable mandatory COVID-19 vaccination policy continues to be highly contextual and dynamic.
(January 12, 2022)
Outcome: Grievance dismissed; Policy upheld
In this matter before Arbitrator Norm Jesin, a grievance was filed in respect of Maple Leaf Sports and Entertainment’s COVID-19 Vaccination Policy (the “Maple Leaf Policy”). The Maple Leaf Policy indicated that as of October 31, 2021, all employees would have to be fully vaccinated. It also explicitly provided for various protective measures to ensure the confidentiality of all disclosed information regarding vaccination status and, where applicable, underlying medical information. Finally, it indicated that non-compliance with the Maple Leaf Policy would result in an employee being placed on an indefinite unpaid leave of absence and potentially being subject to termination.
By way of background, the employer operates a number of professional sports teams, and employed the grievor in its conversion division at Scotia Bank Arena. In his position, the grievor could be required to work in close proximity with up to 100 other employees assisting in the conversion of the arena from one type of event to another. From time to time, he might even be required to work in the presence of players from one of the employer’s sports teams. Following implementation of the Maple Leaf Policy, the grievor refused to disclose his vaccination status and was accordingly placed on an unpaid leave of absence.
In respect of the grievance, the union argued that the employer had violated the grievor’s seniority rights as provided for in the collective agreement. More fundamentally, however, the union argued that an employee’s vaccination status is private medical health information and, as such, should not be subject to disclosure in the circumstances. In the union’s view, it was not challenging the COVID-19 vaccination mandate in the Maple Leaf Policy, but rather simply opposing the requirement in the policy for the disclosure of vaccination status.
For its part, the employer took the position that it had not denied the grievor’s seniority rights. Furthermore, the employer argued that the Maple Leaf Policy had been implemented in furtherance of its obligation under the Occupational Health and Safety Act (“OHSA”) to take every reasonable precaution for the protection of a worker. When weighed against relevant privacy rights, the employer was of the view that this obligation tipped the balance in favour of the Maple Leaf Policy.
Despite the union’s contention, Arbitrator Jesin indicated that he viewed the grievance as a challenge to the Maple Leaf Policy, since the employer had no way of enforcing a COVID-19 vaccination mandate without requiring the disclosure of employees’ vaccination status. Arbitrator Jesin concluded that the weight of arbitral authority supported the imposition of COVID-19 vaccination mandates in the workplace to reduce the transmission of the virus, particularly where employees work in close proximity to others. Furthermore, he concluded that arbitral authority makes it clear that employers are indeed entitled to seek disclosure of employees’ vaccination status to the extent necessary to administer a COVID-19 vaccination mandate in the workplace, particularly if the disclosed information is properly safeguarded. Finally, he did not accept the union’s argument that the grievor’s seniority rights were being denied. Rather, he noted, the employer had established that being vaccinated was a necessary qualification for the performance of work within the bargaining unit, and such a determination was reasonable in the context of the current pandemic. More fundamentally, however, Arbitrator Jesin accepted that it was a reasonable and appropriate approach to fulfilling the employer’s duties under the OHSA.
Hydro One Inc. and Power Workers’ Union
(January 31, 2022)
Outcome: Grievances dismissed; Policy upheld
In this matter before Arbitrator John Stout, twelve individual grievances were filed in respect of Hydro One’s COVID-19 Vaccination Policy (the “Hydro One Policy”). The Hydro One Policy indicated that as of October 22, 2021, all employees would be required to provide proof of vaccination status or to provide confirmation of a medical exemption, of an exemption under the Ontario Human Rights Code, or of a refusal to disclose vaccination status. Beginning on November 8, 2021, those employees who were unvaccinated or who refused to disclose their vaccination status would be required to undergo regular rapid antigen testing prior to reporting to work.
The grievors had each been placed on an unpaid leave of absence for failure to comply with the Hydro One Policy. More specifically, the grievors had each failed to comply with the requirement to either provide proof of vaccination status or of a negative rapid antigen test result for various reasons. All of the grievors did eventually comply with the Hydro One Policy and return to work, with the exception of one who instead retired.
In respect of the grievances, the union argued that the employer had violated the collective agreement by acting unreasonably in addressing various concerns raised by the grievors with respect to the testing and reporting protocols contained in the Hydro One Policy. In its view, the grievors should not have lost wages for their ‘early non-compliance’ and instead should have been able to work remotely, where possible. The union requested payment to all grievors for the period of time they were on an unpaid leave of absence.
For its part, the employer took the position that the Hydro One Policy was a reasonable response to the current pandemic, and that it was reasonable for it to place the grievors on an unpaid leave of absence when they failed to comply with its reasonable terms.
Ultimately, Arbitrator Stout held that the Hydro One Policy was reasonable and necessary to address the ongoing health and safety concerns arising from the pandemic. He further held that the grievors had reasonable advance notice about the requirements of the Hydro One Policy, and that the employer had adequately addressed their concerns, once raised, in good faith and within a reasonable period of time. In the result, Arbitrator Stout held that prohibiting employees from attending work in the absence of proof of vaccination status or of a negative rapid antigen test result was fair and reasonable in the circumstances. He further held that accommodation of the grievors through remote work was not necessary or required in the circumstances, as they had already been provided with the reasonable alternative of rapid antigen testing.
(February 4, 2022)
Outcome: Grievance upheld in part
In this matter before Arbitrator Mitchell, a policy grievance was filed in respect of Elexicon Energy Inc.’s COVID-19 Vaccination Policy (the “Elexicon Policy”). The Elexicon Policy indicated that as of February 21, 2022, all employees would be required to provide proof of full vaccination status or to provide confirmation of an exemption under the Ontario Human Rights Code. It also indicated that unvaccinated employees or those unwilling to disclose their vaccination status would be required to bear the cost of rapid antigen testing and contribute to the cost of PCR testing. Finally, it indicated that those employees who were non-compliant with the Elexicon Policy would be placed on an unpaid leave of absence and would potentially be subject to termination.
In respect of the grievance, the union argued that the Elexicon Policy was unreasonable and overly broad in the circumstances. The union also objected to the requirement that unvaccinated employees or those unwilling to disclose their vaccination status bear any cost in relation to testing. Rather, in its view, the cost of testing, both in time and expense, should be borne by the employer.
For its part, the employer took the position that the Elexicon Policy was reasonable. It argued that it had considered public health recommendations and governmental standards to inform its approach to addressing a pressing health and safety needs, as well as operational considerations needed to provide an essential public service. As for discipline as a consequence for non-compliance with the Elexicon Policy, the employer argued that it would not be rushing to impose discipline and, in any event, any such discipline would remain subject to arbitral review on its own facts. Finally, the employer argued that it was reasonable for employees to bear costs in relation to testing, as the employer should not be forced to bear the costs associated with an employee’s “personal choice that needlessly jeopardizes the health and safety of colleagues, clients and members of the public”.
Ultimately, Arbitrator Mitchell concluded that the general policy of the employer requiring vaccination by its employees was reasonable in the circumstances, particularly in light of the employer’s health and safety obligations, the fact that it provides an essential service, as well as the available scientific data on the transmissibility of COVID-19 and on the efficacy of immunization. That being said, Arbitrator Mitchell also concluded that the Elexicon Policy was not reasonable to the extent of its application to employees who have been working exclusively from home and for whom there was no expectation of a return to the office for several more months, and to employees who work exclusively outside or who can be accommodated such that they can work exclusively outside. In light of his findings in respect of the Elexicon Policy, Arbitrator Mitchell did not deem it necessary that he rule on the cost of testing issue, but did remain seized to deal with that issue if necessary.
(February 7, 2022)
Outcome: Grievance upheld
In this matter before Arbitrator Gail Misra, a policy grievance was filed in respect of Chartwell’s COVID-19 Vaccination Policy (the “Chartwell Policy”). The Chartwell Policy, which was put in place in four (4) Chartwell long-term care homes in south western Ontario pursuant to the Minister of Long-Term Care’s Directive regarding the “Long-Term Care Home Immunization Policy” (the “Directive”), initially indicated that vaccination against COVID-19 would be strongly recommended. Eventually, however, the Chartwell Policy was amended to make vaccination mandatory. More specifically, the Chartwell Policy indicated that as of September 2021, all employees would be required to provide proof of vaccination status or proof of a medical exemption. Beginning on October 12, 2021, those employees who were non-compliant with the Chartwell Policy would be placed on an unpaid leave of absence and would potentially be subject to termination.
Once vaccination was made compulsory, the union raised objections with the Chartwell Policy and instituted the grievance proceedings. On October 1, 2021, however, the Directive was amended to require, rather than recommend, vaccination. More specifically, the revised Directive indicated that all existing staff would have to provide proof of vaccination status or of a medical exemption; otherwise, they would not be permitted to attend a long-term-care home to work. Of note, the union did not challenge the constitutionality of the revised Directive in the course of the grievance proceedings.
In total, 15 bargaining unit members were placed on an unpaid leave of absence for non-compliance with the Chartwell Policy. In December of 2021, 14 of these individuals were ultimately terminated for cause by the employer.
In respect of the grievance, the union argued that the employer had violated the collective agreement both in imposing the Chartwell Policy and in failing to consult with the union prior to implementation. Specifically, in its view, the inclusion of the disciplinary component of the policy was unreasonable and exceeded the requirements of the revised Directive. The union requested, amongst other things, full compensation to all employees adversely affected by its implementation.
For its part, the employer took the position that the Chartwell Policy was reasonable and not inconsistent with the terms of the collective agreement. The employer argued that it is a basic contractual requirement of employment that employees must comply with an employer’s reasonable workplace rules, and that termination of employment was appropriate as a disciplinary consequence for non-compliance in light of both health and safety concerns, as well as the quality of life of its residents. The employer further argued that it had not breached the terms of the collective agreement, including specifically those pertaining to the implementation of new workplace policies.
Ultimately, Arbitrator Misra held that the employer had in fact breached the collective agreement by promulgating the Chartwell Policy without consulting with the union. While accepting that termination for cause may be suitable in some circumstances, she further held that the Chartwell Policy was unreasonable and inconsistent with the collective agreement to the extent that it included termination as a potential consequence for non-compliance. In the result, she ordered that the employer comply with the collective agreement in the future and that the statement “or may have their employment terminated” be struck from the Chartwell Policy, unless the parties were to agree otherwise.
In Our View
As demonstrated in the above-summarized decisions, arbitrators are, in many cases, still erring on the side of caution in upholding employers’ mandatory COVID-19 vaccination policies as the pandemic continues on. Even in the Elexicon Energy matter and in the Chartwell Housing Reit matter, although the arbitrators did not fully uphold the policies in question, they did not entirely reject the policy, nor the imposition of discipline for non-compliance. Rather, in the Elexicon Energy matter, Arbitrator Mitchell took issue only with the scope of application of the policy, but not with the vaccination mandate itself. Similarly, in the Chartwell Housing Reit matter, Arbitrator Misra took issue with the disciplinary component of the policy in the circumstances before her, but noted:
Despite my findings above, it is important to state that this decision should not be taken by those employees who choose not to get fully vaccinated as indicating that the Employer would never be able to terminate their employment for non-compliance with the policy in question, or indeed any reasonable policy. It is only the automatic application of this policy as it respects discharge that has been found to be unreasonable. Employees must understand that even if their Union and the Employer are unable to reach agreement pursuant to Art. 18.5, the Employer continues to have its Management Right under the collective agreement to terminate an employee for just cause. Hence, employees who remain non-compliant with the policy should not think that they are protected forever from the possibility of being dismissed, as the Employer may at some point do so if it feels it can establish that it has just cause for termination of any particular employee. No employer has to leave a non-compliant employee on a leave of absence indefinitely. At some point, and subject to the Employer warning employees of the possibility of termination, and having considered other factors, it will likely have just cause to terminate the employment of such an employee.[emphasis added]
Ultimately, then, there is now significant arbitral precedent in support of upholding mandatory COVID-19 vaccination policies in the workplace. Employers must remember, however, that the determination of whether such a policy is reasonable and not inconsistent with the applicable collective agreement will depend on the specific circumstances in each particular case.