Third COVID-19 Case Upholds Vaccine-or-Test Policy

A third labour arbitrator has released a decision assessing COVID-19 vaccination policies in unionized workplaces. In Ontario Power Generation v. The Power Workers Union (“OPG v. PWU”), Arbitrator John C. Murray held that an employer may place non-compliant employees on an unpaid leave followed by eventual dismissal for cause. He also spoke to who should pay for COVID-19 testing and when the Occupational Health and Safety Act will trump an agreement between the employer and the union.

This decision follows two other labour arbitration decisions released last week assessing COVID-19 vaccination policies in a unionized setting. On November 9th, 2021, our firm reported on Paragon Protection Ltd. and UFCW, Local 333, which upheld a mandatory policy applicable to security guards. On November 15, 2021, our firm reported on Electrical Safety Authority v. Power Workers’ Union, which struck down a mandatory vaccination policy for electrical inspectors but left open a path for such a policy for workplaces caring for vulnerable people.

The Decision

In OPG v. PWU, the vaccination policy at issue required employees to either be vaccinated or participate in twice-weekly rapid antigen testing. Unvaccinated employees had to pay for their tests and were not paid for their time taking and reporting the tests. The penalty for non-participation was a six-week leave without pay followed by termination of employment for cause.

Arbitrator Murray considered three major issues in this case:

    1. Who should pay the cost of COVID-19 testing for unvaccinated employees;
    2. Can unvaccinated employees who refused COVID-19 testing under such a policy be disciplined and discharged; and
    3. Can unvaccinated employees be denied access to the employer-provided gym facilities despite an existing mid-term agreement with the employer?

First Issue – Employer Pays for Tests But Employee Time Unpaid

In respect of the first issue, the Arbitrator started from the proposition that testing of unvaccinated staff is reasonable. They then concluded that:

    1. The Employer was reasonably required to pay for the cost of such tests for unvaccinated employees; but
    2. The Employer was not required to pay employees for their time self-testing and submitting results outside of work (as this could disincentivize vaccination).

The Arbitrator emphasized his findings on this point should be limited to this specific workplace (to be clear – a very large employer with considerably greater resources than most not-for-profit agencies supporting vulnerable people) and the circumstances of the pandemic.

Second Issue – Penalties for Non-Compliance Upheld

The Arbitrator held that the Employer had the authority in these circumstances to place employees who refused to participate in either method of precaution under the policy (either vaccination or testing) on an unpaid leave of absence followed by eventual termination for cause. The Arbitrator made the following powerful statement in doing so:

“The employees who will be placed on an unpaid leave of absence are refusing to take the necessary and reasonable step of taking a minimally intrusive test that would demonstrate that they are fit to work and do not present an unnecessary risk to their co-workers during a global pandemic that has cost 29,000 lives in this country and at least 5 million world-wide.

The Company has given employees who are sent home without pay 6 weeks to consider whether they are willing to partake in the testing regime like so many of their colleagues. I think it is important for them to understand that, in my preliminary view, in the context presented by this global pandemic, when lives of co-workers are at risk, unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they present to their co-workers. The Company has made it clear that termination of employment at the end of the 6-week period will typically occur. It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, employees who refuse testing will likely will have made a decision to end their career with this Company.”

In short, this was an endorsement of imposing disciplinary penalties up to dismissal on unvaccinated employees who refuse to participate in vaccinate-or-testing policies. Key factors were that:

    • Rapid antigen testing was minimally intrusive;
    • Rapid antigen testing was reasonably necessary to show that the employee was fit to work given the unique circumstances of a deadly pandemic;
    • Employees were given 6 weeks before termination to reconsider their choice; and
    • Employees were given a clear warning of the penalties for non-compliance.

This finding strengthens employers in the Developmental Services sector who want to enforce disciplinary penalties on employees for non-compliance with the mandatory vaccine or testing policies that the Provincial Government has imposed. It also indicates that employers will be best positioned to impose termination after giving employees a period to reconsider their choice.

Third Issue – Unvaccinated Employees Can’t Access Gym Despite Existing Agreement

In a final issue of some interest, the Arbitrator found that unvaccinated employees could be barred from using an Employer-provided gym despite a pre-pandemic agreement between the employer and the union giving them access. The Arbitrator held that the requirements of the Occupational Health and Safety Act prevailed over this agreement.

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.