In Electrical Safety Authority and Power Workers’ Union, an arbitrator found that an employer’s mandatory COVID-19 vaccination policy was unreasonable and a significant over-reach of management rights.
In September 2021, the Electrical Safety Authority (the “Employer”) implemented a voluntary vaccination disclosure and testing policy (the “Voluntary Policy”) in September 2021. The Power Workers’ Union (the “Union”) did not object to the Voluntary Policy, which allowed employees who did not voluntarily disclose their vaccination status to be tested on a regular basis.
In October 2021, the Employer implemented a mandatory vaccination policy (the “Mandatory Policy”) which required all staff to be fully vaccinated, with no option to take part in regular testing as an alternative, unless they provided proof of an exemption based on a protected ground under the Ontario Human Rights Code. Under the Mandatory Policy, those who did not disclose full vaccination status could be disciplined, discharged, and/or placed on an unpaid leave of absence.
The Union proceeded to file a grievance and took the position that the Mandatory Policy was unreasonable and a significant over-reach of management rights that violated the collective agreement, as well as employees’ privacy rights and right to bodily integrity. In response, the Employer asserted that the Mandatory Policy was a reasonable exercise of management rights that fulfilled their legal obligation under the Ontario Occupational Health and Safety Act [OHSA] to take every reasonable precaution to protect the health and safety of their workers.
The arbitrator allowed the grievance and found the Mandatory Policy to be unreasonable to the extent that employees may be disciplined, discharged, and/or placed on an unpaid leave for failing to get fully vaccinated.
In assessing the reasonableness of the Mandatory Policy, the arbitrator took a fact-specific, contextual approach. The arbitrator acknowledged that in settings where there is a greater risk to the health and safety of employees and/or vulnerable populations, an employer may encroach on individual employee rights with a carefully tailored policy that meets its obligations under the OHSA. Conversely, in settings where there is no specific or significant risk to health and safety, or significant interference with the employer’s operations, then a less intrusive alternative, such as the previously implemented Voluntary Policy, may be adequate to address the risks. Additionally, the arbitrator noted the fluidity of the circumstances surrounding the COVID-19 pandemic, and that “what may have been unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.”
The arbitrator found that there was no real, demonstrated risk within the workplace or requirement within legislation and the collective agreement that would justify the Mandatory Policy’s implementation. The Employer did not operate a particularly high-risk workplace, as most work was done remotely and the vast majority of employees had been voluntarily vaccinated against COVID-19. The arbitrator further noted that workplace circumstances surrounding the COVID-19 pandemic had not changed between the implementation of the Voluntary Policy and the implementation of the Mandatory Policy. Additionally, there was no legislative authority or collective agreement language that required employees to be vaccinated. On these bases, the arbitrator ultimately found the Mandatory Policy unreasonable.
Notably, the arbitrator distinguished the facts before him from those presented in UFCW, Canada Local 333 v Paragon Protection Ltd [Paragon Protection], another recent labour arbitration decision in which a mandatory vaccination policy was upheld. The arbitrator noted that Paragon Protection was reasonably decided, but emphasized that the decision arose on different facts and was distinguishable.
This decision suggests that as the situation surrounding the COVID-19 pandemic is ever-evolving, assessments regarding the reasonableness of a vaccination policy will clearly be highly fact- and context-specific.
As noted by the arbitrator, this decision stands in contrast with the Paragon Protection decision (for more information on this decision, please see our previous blog). Stay tuned for a later blog in which we will compare and contrast the two decisions to provide further insight into the current state of the law with respect to mandatory vaccination policies.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.