Employees refusing COVID-19 vaccine mandate cannot be disciplined nor terminated: labour arbitrator

Employer acted prematurely and disregarded employees' rights

Employees refusing COVID-19 vaccine mandate cannot be disciplined nor terminated: labour arbitrator

An Ontario labour arbitrator has ordered an employer to amend its mandatory COVID-19 vaccination policy to clarify that employees cannot be disciplined nor terminated for refusing to get vaccinated.

In a recent labour arbitration award, the Electrical Safety Authority (ESA) had adopted a policy in October requiring all its employees to be fully vaccinated and to disclose their vaccination status. The mandatory vaccination policy also provided that ESA would accommodate employees who are legally exempted from being vaccinated under the Ontario Human Rights Code. But any violator may be subject to disciplinary actions, including termination. Prior to the vaccine mandate, ESA had implemented a voluntary vaccination disclosure and testing policy (VVD/T policy) which allowed employees who refused to voluntarily disclose their vaccination status to be tested on a regular basis.

As a result, the Power Workers’ Union (PWU) filed a grievance against the ESA. The PWU alleged that the ESA’s mandatory vaccination policy was “unreasonable and a significant over-reaching exercise of management rights,” thereby violating the collective agreement as well as their rights to privacy and bodily integrity. The ESA denied any violation of the collective agreement and argued that the mandatory vaccination policy was a reasonable exercise of management rights.

In his decision, Chief Arbitrator John Stout sided with PWU and held that ESA’s mandatory vaccination policy was unreasonable, to the extent that employees refusing to get vaccinated can be disciplined or terminated. “In my opinion, ESA has acted prematurely and without considering the individual rights of employees.”

 According to Stout, the collective agreement had no provisions specifically addressing vaccinations and the ESA had not previously required any employees to be vaccinated as a condition of employment. There was also no government mandate that all ESA employees must be vaccinated, he said. “I have also not been provided with any prior authority (arbitration award or court decision) that upholds a mandatory employer vaccination rule or policy applicable to all employees, without specific collective agreement language or legislative authority, outside of a healthcare or long-term care setting,” he added.

A mandatory vaccination policy may be necessary “in workplace settings where the risks are high and there are vulnerable populations,” Stout said. But in other workplace settings where there is no significant risk related to an infection outbreak, no significant interference with an employer’s operations or employees can work remotely, a reasonable and less intrusive alternative, such as ESA’s VVD/T policy, may be adequate, he said.

Stout found that no COVID-19 outbreak had occurred in ESA’s workplace since March 2020, given that only seven out of 415 employees had contracted COVID-19 and only two infections were work-related. “Over 90 [per cent] of operations, which includes inspectors, have been vaccinated. While there may have been some hesitancy earlier, it appears that employees are now disclosing their status and only 14 of 415 employees have not disclosed their vaccination status,” he said.

Stout determined that there was no evidence that substantial interference with ESA’s operations cannot be reasonably addressed under the VVD/T policy or through other reasonable means. Also, the majority of ESA employees’ work is being done remotely and many employees have the right to request remote work under the collective agreement, he said.

Stout noted that the present case is distinct from F.R. von Veh’s labour arbitration award released November 9. That award dealt with different union and employer and the parties’ collective agreement contained provisions in which an employee must agree to receive vaccination when required at an assigned site, he said.

Stout ruled that the mandatory vaccination policy was unreasonable for another reason  the ESA can place unvaccinated employees on leave without pay. But he upheld the policy provision requiring employees to confirm their vaccination status, provided that their personal medical information is protected and only disclosed with their consent. He also ordered the ESA to provide a testing option for unvaccinated employees and refer the policy and his arbitration award to the Joint Health and Safety Committee for review.

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