On November 11, 2021, only two days after Arbitrator Von Veh upheld a mandatory vaccination policy in United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. (Paragon), Arbitrator Stout struck down such a policy in Electrical Safety Authority and Power Workers’ Union (Authority).  

Background

In September 2021, the Electrical Safety Authority (the Authority) implemented a policy that allowed employees who did not voluntarily disclose their vaccination status to be tested on a regular basis (Policy 1). On October 5, 2021, management unilaterally introduced a policy that does not have a testing alternative, requires all employees to disclose their vaccination status, and provides that any employee who does not disclose or who is not vaccinated may be placed on unpaid leave and disciplined or discharged for failing to get fully vaccinated (Policy 2). Nothing in the collective agreement (CA) between the Power Workers’ Union (PWU) and the Authority specifically addresses vaccinations. The Authority never previously required an employee to be vaccinated as a condition of employment and no statute requires the Authority’s employees to be vaccinated.

PWU filed a grievance asserting that Policy 2 “is unreasonable and a significant over-reaching exercise of management rights,” which violates the CA and employees’ rights to privacy and bodily integrity. 

Findings of the Arbitrator

Siding with PWU, Arbitrator Stout decided that Policy 2 was unreasonable. In arriving at this conclusion, he made the following general observations:

• There was nothing in the CA specifically addressing vaccinations;

• He had not been provided with an arbitral award or judicial decision that upheld an employer’s mandatory vaccination policy that applied to all employees, without specific language in the CA, except from a healthcare or long-term care setting;

• The appropriate way to assess the reasonableness of unilaterally imposed employer rules or policies that affect an employee’s privacy is to apply the test in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 16 L.A.C. (the KVP test), which involves a contextual analysis and a “balancing of interests” approach. Context is extremely important when conducting such an assessment and the consensus in the authorities is that, “where the risk to health and safety is greater, an employer may encroach upon individual employee rights with a carefully tailored rule or policy.” Furthermore, where the rule or policy involves health and safety, it is important to consider the employer’s obligation under s. 25(2)(h) of the Occupational Health and Safety Act (OHSA) “to take every reasonable precaution in the circumstances for the protection of the worker,” which fits neatly within the KVP test;

• Mandatory vaccination policies may be reasonable and necessary to protect vulnerable populations in workplace settings where the risks are high (e.g., where there are sick or elderly individuals or children who cannot be vaccinated). However, a reasonable, less-intrusive alternative (e.g., Policy 1), may be adequate in workplace settings where employees can work remotely and there are no outbreaks, infections, or a significant interference with the employee’s operations, or any risk of these;

• Due to the fluid nature of the pandemic, a policy that was once reasonable or unreasonable may not be at a later point in time; and

• It is the role of government to address general public health issues, not employers, and there is no government mandate requiring the Authority employees to be vaccinated.

Arbitrator Stout then turned to the Authority’s specific workplace and emphasized the following factors:

• The Authority had a done a tremendous job of living up to its reputation as a safety organization, and has an interest in continuing to promote and protect this reputation;

• Only two out of seven COVID-19 cases among Authority employees may have been work-related and they occurred prior to the availability of vaccinations. There have not been any outbreaks in the Authority workplace;

• 88.4% of Authority employees were vaccinated and disclosed their status;

• Before October 5, 2021, the Authority had Policy 1. PWU did not object to Policy 1 and, in fact, they were publicly supportive of it as being a reasonable workplace health and safety measure;

• Policies similar to Policy 1 have been adopted by other employers in the sector and there is no evidence that those policies are not effective;

• Although testing is fallible and a less-effective intervention than vaccination, it is a reasonable tool to utilize in protecting a workplace, and the Authority has not demonstrated any difficulties in protecting their workplace using a combination of vaccination and testing;

• Testing has been endorsed by the Ontario Chief Medical Officer of Health and the Authority’s expert advises that “mandatory vaccination along with testing provides maximum protection against transmission.”

• Although the Authority has legitimate concerns, they do not at this point justify imposing a mandatory vaccination regime with threats of discipline or discharge;

• Most of the Authority employees are working remotely, and many of them have the right to continue working remotely under the CA;

• Although some of the Authority employees will need to travel or gain access to third-party sites/locations that have vaccination policies, the Authority has not proven that if some employees are unvaccinated, it would create a significant problem that would interfere with its operations. Mandating vaccination is not the only reasonable approach in these circumstances; alternative measures can be taken such as the assignment of fully vaccinated employees to such third-party sites/locations and to travel, or a policy that combines vaccination with a testing alternative and makes it clear to employees that they must respect the wishes of third parties who require proof of a negative test or confirmation of vaccination prior to granting access;

• When the Authority had second thoughts about Policy 1, it did not bring them to the joint health and safety committee (JHSC) for review and recommendations. According to the arbitrator, the Authority jumped to a conclusion without considering the validity of its concerns and analyzing if they would result in serious workplace problems that could not be addressed with a policy that combines vaccination with a testing alternative. Because the Authority acted prematurely without considering the individual rights of its employees, the arbitrator decided, certain aspects of Policy 2 are unreasonable;

• It is unjust to discipline or discharge an employee for failing to be vaccinated, when it is not a requirement of being hired and there is a reasonable alternative. An employer has the right to manage its business; however, it cannot terminate an employee for breach of a rule unless it can meet the KVP test and be found to be reasonably exercising its management rights;

• Management has the right and legal obligation to protect the health and safety of its employees in the workplace. Employers may institute a reasonable rule or policy that requires disclosure of medical information to ensure an employee is fit to perform work or safely attend the workplace; however, the rule or policy must be reasonably necessary and respond proportionately to a real and demonstrated risk or business need. Employees who are not fit to perform work may be put on administrative leave, subject to their right to claim any benefit provided for under the CA and file a grievance challenging the reasonableness of the employer’s decision;

• “The Authority has legitimate concerns, and they wish to return employees to the workplace in the near future.”  Such concerns and plans should be discussed at the JHSC where the union has representation, and the JHSC should be asked about its own concerns or recommendations;

• The Authority may need to take other measures, including placing unvaccinated employees on administrative leave if (a) a health and safety problem arises in the workplace, or (b) the number of unvaccinated employees creates real problems for the Authority’s business and cannot be addressed in any other reasonable way. If PWU objects to such measures, it may bring the issue back before the arbitrator on an expedited basis; and

The Paragon award was reasonable in the circumstances before the arbitrator and it does not conflict with this decision. It is distinguishable because: (a) it arises in a different context and involves a different union and a different employer (a security company whose employees perform all their work at third-party sites); and (b) it has specific language in the applicable CA “that requires employees to receive a specific vaccination required at an assigned site” (art. 24.05).

For these reasons, Arbitrator Stout allowed the grievance and made the following orders:

• Directing the Authority to amend Policy 2 to clarify that employees will not be disciplined or discharged if they fail to get vaccinated;

• Directing the Authority to provide a testing option for those who have not been vaccinated;

• Allowing the Authority to revise Policy 2 to indicate that if in the future problems occur in its operations or safety concerns cannot be adequately addressed by a combined vaccination and testing regime, employees may be placed on administrative leave with reasonable notice without pay if not fully vaccinated;

• Allowing the Authority’s Policy 2 to require employees to confirm their vaccination status on the condition that their personal medical information provided is adequately protected and only disclosed with the employees’ consent;

• Allowing the Authority to amend Policy 2 to provide employees with the option of providing a general consent to disclosure of vaccination status to access third-party premises, or reserve the right to disclosure on a case-by-case basis;

• Requiring the Authority to provide a copy of the revised Policy 2 and Arbitrator Stout’s award to the JHSC and to advise them of any and all concerns they may have about health and safety in the workplace and at third-party sites. The JHSC must be given a reasonable period of time for review to allow it to identify its own dangers or hazards and make written recommendations to the Authority. 

• Allowing the matter to be brought back before Arbitrator Stout if concerns still exist and the situation has evolved to a point where the Authority needs to take additional measures, but the PWU objects.

Notably, Arbitrator Stout emphasized that his award should not be “construed as a victory” for those “misguided” individuals who lack a legal exemption but choose not to be vaccinated and, in doing so act against “their own and society’s best interests.”  

Bottom Line for Employers

Arbitrator Stout emphasized that, in assessing the reasonableness of a mandatory vaccination policy, a contextual analysis approach is key. Given the recent trend among employers to implement vaccination policies, Arbitrator Stout’s award in Authority may ring some alarm bells. While the Authority award emphasizes the extreme importance of conducting a contextual analysis and opens the possibility that, based on such an analysis, some mandatory vaccination policies may be struck down, Arbitrator Stout’s award should not lead employers to conclude that all workplace mandatory vaccination policies will fail.

We are in the earliest stage of arbitral and judicial analysis of many complex issues in a highly novel pandemic context and the Authority award is non-binding (although it will be of some persuasive value). It remains to be seen whether the Authority award will be subject to judicial review, and if so, whether a court will decide instead that, even in the absence of language in the applicable CA addressing vaccination, mandatory vaccination policies that comply with the Human Rights Code are reasonable and enforceable, and satisfy an employer’s obligation under the OHSA to take every reasonable precaution to protect the health and safety of its workers. In fact, Arbitrator Strout acknowledged that, “While an individual’s right to privacy and bodily integrity is fundamental, so too is the right of all employees to have a safe and health [sic] workplace.”

In addition, Arbitrator Stout expressly indicated due to the fluid nature of the pandemic, a policy that was once unreasonable may not be at a later point, and vice versa.

Based on their own contextual factors, employers may have their mandatory vaccination policies upheld as a reasonable exercise of their management rights, even if their workplace setting is not considered high-risk, and even in the absence of language in the applicable CA. The highly contagious nature of the Delta variant, the recent uptick of infections in Ontario, and the not-insignificant rate at which breakthrough cases are occurring may contribute to this outcome. When considering the development of vaccination policies, employers are encouraged to remember that they are required under OHSA to protect the health and safety of their workers.  Employers that are considering implementing a mandatory vaccination policy are also strongly encouraged to seek the guidance of experienced employment counsel before doing so.

We will follow whether the Authority award becomes subject to judicial review, as well as any other arbitral awards or judicial decisions that consider vaccination policies in unionized and non-unionized settings. Updates will be provided as these cases are decided.