On November 9th, 2021, our firm reported on the release of the first case to consider a mandatory COVID-19 policy in the workplace, Paragon Protection Ltd. and UFCW, Local 333. That decision upheld such a policy as a reasonable exercise of management rights to respond to the pandemic.
In a shocking turn, the second decision on this subject was released on Friday, November 12, 2021, by Arbitrator John Stout, striking down a mandatory policy that required employees to become vaccinated or face discipline or dismissal. Electrical Safety Authority v. Power Workers’ Union adds a major roadblock to such policies outside of settings caring for vulnerable persons, and may impact even those sectors’ ability to enact such policies.
The Decision
The employer, a regulatory agency responsible for inspections of electrical safety, had issued a mandatory COVID-19 vaccination policy for staff in early October 2021. A month previously they had implemented a policy requiring vaccination or regular surveillance testing. The Union had supported the original policy, but not the mandatory policy. The Union argued that the new policy was unreasonable and an unjustified violation o the privacy and bodily integrity of employees, and that it was therefore inconsistent with the collective agreement. The matter was fully argued by counsel and included expert evidence brought by the employer.
While the Arbitrator expressed “great sympathy” for the employer and acknowledged the effectiveness and safety of the vaccines, the threat posed by COVID to the individual, and the threat posed by COVID to society, the Arbitrator nonetheless found the policy to be unreasonable.
The Arbitrator chose to respond to this new challenge by using the pre-COVID-19 arbitration test for assessing a workplace rule that could result in discipline or discharge. For health and safety rules and policies, the arbitrator had to balance the employee’s right to bodily integrity and privacy with the employer’s legitimate health and safety concerns. For a host of reasons, the Arbitrator found that the balance favoured unvaccinated employees:
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- Nothing in the collective agreement dealt with vaccinations of any kind;
- There was no history of such a policy being implemented by this employer;
- There was no legislative requirement permitting this;
- Employees could perform their work remotely in most cases;
- There was a very high rate of voluntary vaccination (88.4%);
- There was no history of workplace outbreaks, and the only two work-related cases pre-dated the availability of vaccines;
- While the employer claimed that the policy was necessary to respond to safety risks and the interference with its operations from third-party worksites refusing entry to unvaccinated employees, no substantive analysis of the risks or evidence of a serious actual problem were presented;
- Were there were actual concerns, no evidence was presented that the vaccine or test policy was not reasonable (even if mandatory vaccination was the most effective policy); and
- It wasn’t his responsibility to consider broader societal implications or the burden on the healthcare sector, so he did not do so.
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In those circumstances, where a reasonable alternative measure existed in the vaccinate or test policy, the arbitrator considered discharging or disciplining an employee for being unvaccinated “unjust”, and that even placing them on an unpaid administrative leave would be. The arbitrator did note, however, that if circumstances changed and a significant issue did arise due to third parties barring access to sites to perform work, then the employer may have a basis to place unvaccinated employees on an unpaid administrative leave after “reasonable notice” until they are vaccinated.
The arbitrator did express that an employer could require disclosure of vaccination status, so long as appropriate protections against disclosure were required. Vaccination could not, however, be disclosed without prior consent, which did not have to be given and could be withdrawn. Of course, that could lead employees to be barred from third-party sites, and they needed to be aware of that.
Arbitrator Stout also briefly considered Paragon Protection, and simply said that it arrived in a different context with a different union. The employer in that case exclusively provided work at third party sites, and thus may have faced greater operational challenges absent such a policy. The parties there also had specific language in their collective agreement about vaccination in pre-dating COVID-19 cases. In short, Arbitrator Stout believed that decision was reasonable, but distinguishable.
The Implications for the DS Sector
This decision is a blow to the ability of employers in society at large to respond to the COVID-19 pandemic in the most direct way available. After the initial win of the Paragon Protection Ltd. decision, employers now once again have uncertainty.
For the developmental services sector, however, there are some hints in Arbitrator Stout’s decision that he could have reached a different conclusion where vulnerable people are involved. In his decision, Arbitrator Stout said:
“In workplace settings where the risks are high and there are vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated) then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations” (at para. 17)
This is a clear signal that different considerations may come into play when vulnerable populations, such as developmentally disabled persons, are affected by the decision of employees not to be vaccinated. So, this decision very much does not close the door to vaccination policies in those settings.
However, what this decision does do is warn developmental services employers to be prepared to demonstrate why mandatory vaccination is reasonably necessary to address risks (meaning that a vaccinate or test policy would be insufficient). It also brings into question whether discipline or discharge can be used as penalties for being unvaccinated in those settings, or if an indefinite unpaid administrative leave would be the more appropriate penalty.
In short, this decision dims some of the hopes that the Paragon Protection Ltd. decision had brought mid-week, but does not close the door on these sorts of policies. This case also makes it clear as day that the most effective way to resolve the uncertainty faced by employers of all stripes regarding mandatory vaccination policies is legislative guidance from the Province. Otherwise, employers could be caught in endless litigation as these matters are tested by the courts in each setting where such a policy is implemented.
PooranLaw will continue to monitor legal developments related to workplace vaccination policies and provide updates online. In the meantime, if you require legal assistance in determining how these policies apply to your organization, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
