COVID-19 related case law continues to trickle in. In this Insights article we review the case of Power Workers’ Union v Elexicon Energy Inc.
The Facts
In this case, the Union challenged the mandatory vaccination policy introduced by Elexicon, a local energy distributor serving Ajax, Whitby, Oshawa, Belleville, and Gravenhurst. With a total of 273 employees in total, the Employer has some employees who work in the office and some “in the field.”
On October 28, 2021, the Employer introduced a policy requiring all employees to confirm full vaccination status. The policy provided employees until January 21, 2022 to confirm that they had received a first dose, and until February 21, 2022 to confirm their second dose. The policy also included a requirement for a third or booster dose and made full vaccination a condition of employment for future employees.
The Decision
The Arbitrator found that the general policy of the Employer requiring vaccination by its employees is reasonable in the circumstances of this case, particularly as it requires a small minority of unvaccinated employees to become vaccinated with three doses of the vaccine and requires the large majority of employees with two doses of the vaccine to become vaccinated with the third or booster dose.
However, the arbitrator found that the policy was not reasonable in its application to employees who exclusively worked from home since the beginning of the pandemic, or those that worked exclusively outdoors.
One of the arbitrator’s primary reasons for making this decision was his recognition that all employees have the right by law to a safe workplace and the Employer under the law has a duty to take every reasonable precaution in the circumstances to that end. He noted that vaccinated employees are at less of a risk of becoming infected with omicron virus than are unvaccinated employees, thereby less likely to transmit the disease to others. The second reason for his decision was that the Employer provides an important essential service (the transmission of electricity), and therefore, a vaccination policy that supports the Employer in preserving its workforce is important.
The arbitrator found it unnecessary to determine if the policy’s rule requiring unvaccinated employees to pay for their own rapid antigen test was reasonable.
Why is this case important?
This case highlights that arbitrators assessing vaccination policy will take a contextual approach that considers the evolving circumstances of COVID-19 at the time the policy is going into effect, as well as the nature of the employer’s business. It also supports requiring a booster or third dose, particularly for employers providing essential services. Further, it clarifies that a reasonable policy must consider the working conditions of different employees, such as those who work from home or those who exclusively work outside.
PooranLaw will continue to monitor the ongoing legal developments related to COVID-19. In the meantime, if you require legal assistance, 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.
