Canadian arbitrator upholds mandatory vaccination policy for employees who work indoors

Background

Pursuant to the Policy, an employee with two COVID-19 vaccine doses is required to have a third dose, and unvaccinated employees are required to have three doses.  Grounds for exemption from the Policy and refusing vaccination are those protected by the Ontario Human Rights Code (OHRC), including confirmed medical reasons. The employer will attempt to provide an appropriate individualized accommodation plan if the reasons for vaccination refusal are covered by the OHRC.

Exempted individuals will be required to complete twice-weekly rapid antigen tests and demonstrate a negative result. The cost of testing for exempted individuals will be paid by the employer.  Unvaccinated employees without exemptions are responsible for rapid antigen testing, and must pay $25 toward the cost of PCR tests administered by the employer. Employees who do not provide a valid reason for remaining unvaccinated, or who are non-compliant with the Policy will be required to complete COVID-19 vaccine awareness training.  If they remain unvaccinated by February 21, 2022, they will be restricted from entering the employer’s property and worksites and placed on an unpaid leave of absence. Depending on the circumstances, an employee may also be subject to disciplinary action up to and including termination of employment. Any such discipline will remain subject to arbitral review.

The Policy was issued and grieved when the Delta variant was predominant in Ontario.  When the matter was finally heard, however, the dominant strain was the Omicron variant, which dramatically changed the circumstances. Omicron was highly transmissible and spread rapidly, the number of cases including at the employer had increased considerably, lockdowns and other public health restrictions were reimposed, hospitalizations increased, schools and businesses closed again, and the employer introduced new measures to address the spread of Omicron.

Award

In making his Award, the Arbitrator noted that although normally the circumstances prior to the introduction of the Policy would be the background against which its reasonableness would be considered, the pre-Omicron experience had become less relevant to the analysis.  Emphasizing that the reasonableness of a mandatory vaccination policy in a pandemic, “is contextual and highly dynamic,” the Arbitrator emphasized that “precedents decided in a completely different context…necessarily become less relevant than they might otherwise be.” 

The Arbitrator decided that the employer’s Policy was reasonable in the circumstances for the following reasons:

• It required a small minority of unvaccinated employees to become vaccinated with three doses of the vaccine, and the large majority of employees with two doses to become vaccinated with the third booster dose. 
• Section 25(2)(h) of the Occupational Health and Safety Act places a positive duty on an employer to “take every precaution reasonable in the circumstances for the protection of a worker.” Under the law, employees have the right to a safe workplace and the employer has a duty to take every reasonable precaution in the circumstances to ensure that its employees have such a workplace. Vaccinated employees have a lower risk of becoming infected with Omicron than unvaccinated employees, and the more likely employees are to become infected, the more likely they are to transmit Omicron to others. These are not decisions to be left to the Government, as the union asserted.  Arbitrator Mitchell stressed that, “it is my view that in Ontario, aside from long term care, the Government has explicitly left it to individual employers to determine in the context of their individual workplaces whether mandatory vaccination should be implemented.”
• It is the employer’s responsibility to provide critical essential services, namely to transmit electricity in the community and maintain its supply.  The employer must ensure that it has a workforce that can adequately provide these services. Given the enormous transmissibility of Omicron and the scientific data that third doses significantly decrease the likelihood of severe disease, to preserve the health of the workforce it is reasonable to require an employee with two doses to have a third dose, and to require unvaccinated employees to have three doses.

The Arbitrator found, however, that the Policy was not reasonable as it applied to:

• Unvaccinated employees who were working exclusively from home and for whom there was no expectation at the moment of a return to the office, and
• Employees who work entirely outside or who could be accommodated to do so.

Although the parties disputed the reasonableness of the rule requiring unvaccinated employees to pay for the cost of antigen testing and to pay $25 toward the cost of PCR testing, the Arbitrator found it unnecessary  to determine the issue but stated he would deal with it if necessary.

Bottom Line for Employers

The arbitrator in Elexicon Energy followed certain trends we have seen established by other arbitrators in previous arbitration awards relating to the mandatory vaccination policies of unionized employers.  First, in deciding to uphold the employer’s Policy, Arbitrator Mitchell took into consideration the nature of the service provided by the employer and recognized that unless its employees did everything possible to remain healthy in the face of the highly transmissible Omicron variant, the employer might find itself without a workforce capable of “keeping the lights on” in the communities it serviced. 

As well, Elexicon Energy suggests, as did previous arbitration awards, that mandatory vaccination policies that comply with the OHRC will be considered reasonable and enforceable, and viewed as satisfying an employer’s obligation under section 25(2)(h) of the OHSA to “take every precaution reasonable in the circumstances for the protection of a worker.”

Arbitrator Mitchell also emphasized that context is critically important in an analysis of the reasonableness of a mandatory vaccination policy.  The COVID-19 pandemic has been dynamic, with at least three main variants arising to date, all of them different in their transmissibility and the nature of harm they may cause.  Employers should be aware that any analysis of the reasonableness of a mandatory policy will be based on the context at the time of the analysis, as well as in the context of whether it applies to employees who work indoors (even partially) or exclusively outdoors, or at home with no intention of returning to the workplace in the near future.