Arbitrator upholds mandatory vaccination policy agreeing with the 'weight of authority'

The Policy 

On September 1, 2021, Ontario announced that, subject to limited exceptions, patrons at events held at the Arena would be required to be fully vaccinated with approved COVID-19 vaccines.  The next day, the Employer implemented a policy requiring its employees to be fully vaccinated no later than October 31, 2021, and to disclose their vaccine status by that date (Policy).  The Policy provided:

• The vaccine requirement was “one of the critical measures in controlling the spread of COVID-19”;
• Information regarding an employee’s vaccination status would be anonymized and kept confidential;
• Employees would disclose their vaccination status through a secure portal operated by a third party;
• Information would be available to a limited number of employees on a “need to know” basis and would be expunged from employees’ files when no longer needed; and
• If persons who had access to the information breached confidentiality, they would face discipline up to and including discharge.

The Employer informed its employees of the Policy’s requirements, and advised them that if they were not fully vaccinated by October 31, 2021 or failed to disclose their vaccination status by that date, they would be placed on an indefinite unpaid leave of absence and might be subject to the termination of their employment. 

In email correspondence between the grievor and management dated October 19, 2021, the Employer confirmed:

• The Policy applied to all employees including conversion employees; and
• Failure to disclose vaccination status would result in the employee’s being placed on unpaid leave, and/or being terminated from his employment. 

In addition to the government’s September announcement that, subject to limited exceptions, patrons at events in arenas would be required to be vaccinated, the Employer also relied on the following in support of its decision to implement the Policy:

• There was a COVID-19 outbreak in the arena in April 2021 and eight employees tested positive;
• In August 2021:
  • The Toronto Medical Officer of Health strongly recommended that local employers institute vaccine policies to protect employees and the public from COVID-19; and
  • Ontario’s Ministry of Health released statistics establishing that COVID-19 vaccines provide substantial protection against hospitalization particularly against serious illness.

When the grievor refused to disclose his vaccination status, as required by the Policy, the Employer placed him on an unpaid leave of absence.

The Grievance

The Union filed a grievance arguing that:

• By keeping the grievor out of work, the Employer violated its mandatory obligation under the collective agreement (CA) to provide employees work opportunities by seniority.  Such opportunities may not be denied on the basis of a failure to disclose vaccine status, which does not affect whether the employee has the skill and ability to work;

• The CA guarantees 80 hours’ pay per pay period and this has been denied to the grievor; and

• As an employee’s vaccine status is private medical health information, it should not be subject to disclosure.  As an alternative, the Employer could require the employee to submit to regular rapid antigen testing for COVID-19.  The offer of this alternative would satisfy any obligation under s. 25(2)(h) of the Occupational Health and Safety Act (OHSA) to “take every reasonable precaution in the circumstances for the protection of a worker.”

The Employer responded to the grievance as follows:

• It did not deny the grievor’s seniority rights under the CA.  The right does not apply as there is no guarantee of work opportunities by seniority when an employee is not required to attend work.  The employee’s right to work is subject to their ability to perform the work in question. The Employer had every right under its management rights set out in the CA to establish a requirement that employees be fully vaccinated.  An employee who does not disclose their vaccine status is unable to establish their ability to perform the work in question;

• The Employer has an obligation under OHSA to take every reasonable precaution for the protection of the worker.  The Policy is implemented to reduce the transmission of COVID-19 in furtherance of the Employer’s OHSA duties, and the evidence indicates that rapid testing does not do so as effectively;

Decision

Arbitrator Jesin denied the grievance, determining that when the Employer placed the grievor on an unpaid leave of absence after he refused to disclose his vaccination status, it did not violate the CA or any relevant legislation.

At the outset of his explanation for why he decided to deny the union’s grievance, Arbitrator Jesin stated:

It is clear that the weight of authority supports the imposition of vaccine mandates in the workplace to reduce the spread of Covid 19.  That is particularly so where employees work in close proximity with other employees, as they do in this case.  The authority to impose such mandates arises not only from management’s right to implement reasonable rules and regulations but also from the duty of employers to take any necessary measures for the protection of the workers as set out in OHSA.  (para. 19)

Arbitrator Jesin then rejected the union’s position that it was not challenging the Policy, but “only seeking to protect the employee’s right to keep personal medical information private.”  He noted that a mandatory vaccination policy cannot be enforced unless all employees are required to disclose their vaccination status because without such disclosure an employer cannot ensure that its employees are vaccinated.  Arbitrator Jesin “endorsed and agreed with” the arbitration decisions that clarify that employers may seek disclosure of employees’ vaccination status to administer a vaccination policy, especially if procedures are put in place to protect the information’s confidentiality, and he noted that the Employer had taken appropriate steps to establish such procedures. 

Arbitrator Jesin also rejected the union’s argument that the seniority rights accorded in the CA were being denied.  Instead, he concluded that the Employer made vaccination against COVID-19 “a necessary qualification for the performance of work within the bargaining unit.”  Arbitrator Jesin stated that, in doing so in the context of the pandemic, the Employer had taken, “a reasonable and appropriate approach to fulfilling its duties under OHSA for the protection of all workers in its employ.” 

Bottom Line for Employers

Employers will be encouraged that in Maple Leaf Arbitrator Jesin followed the “weight of authority” supporting the imposition of vaccine mandates in the workplace to reduce the spread of COVID-19, which has determined that “privacy rights are not absolute and must be balanced against other legitimate interests including the duty and obligation to protect the health and safety of its employees.”  Maple Leaf is yet another decision demonstrating the apparent general inclination of arbitrators in Ontario to consider the implementation by employers of policies mandating vaccination against COVID-19 reasonable on the basis that the minimal intrusion on privacy rights is justified by the need to ensure public health and safety.

We encourage employers considering the implementation of mandatory vaccination policies to seek the advice of experienced labour and employment counsel.