Do mandatory vaccination policies infringe on Charter of Rights and Freedoms?

by Rhonda B. Levy and George Vassos of Littler

In The Toronto District School Board and CUPE, Local 4400 (Re: PR734 COVID-19 Vaccine Procedure) (TDSB and CUPE), Arbitrator William Kaplan upheld the Toronto District School Board’s (TDSB) mandatory COVID-19 vaccination policy. In doing so, he determined that the policy did not infringe section 7 of the Charter of Rights and Freedoms (Charter), which provides that everyone has the right to life, liberty and security, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The arbitrator also determined that the policy was a reasonable exercise of management rights.

Background

The TDSB implemented a policy requiring all employees with direct contact with staff or students at a TDSB workplace to be fully vaccinated against COVID-19 (i.e., two doses of an approved vaccine), and provide evidence of this by November 1, 2021, or establish that they had a valid medical or Human Rights Code (HRC) exemption.  Employees who did not do so would be placed on non-disciplinary leaves of absence without pay.  The union’s requests that the TDSB reconsider the policy were declined. Because of staffing requirements, however, the TDSB used a decision matrix to decide whether an unvaccinated employee would be allowed to attend work with testing.

Approximately 300 union members were granted temporary exemptions because of staffing requirements and a smaller number of unvaccinated employees were allowed to remain at work with testing, pending determination of mostly creed exemption requests under the HRC, and some medical exemption requests. 

In December 2021, the Omicron variant emerged and soon became the dominant variant. As of January 2022, 96.8% of the TDSB staff were compliant with the policy.

Both parties produced expert reports that agreed on almost everything, including the vaccine’s efficacy.  The reports disagreed on whether transmission of COVID-19 in the workplace is reduced by rapid antigen tests (RATS), and whether RATS are an effective alternative to vaccination. 

On March 10, 2022, in the evening after the final day of the proceedings in this matter, the TDSB Board of Trustees passed a resolution rescinding the policy, after the Ministry of Education advised school boards they were no longer required to have the vaccination status disclosure in place.

Union’s Position

The union’s position was that RATS were extremely effective if the policy’s testing protocol was followed (i.e., the one used by unvaccinated employees who were given a staffing exemption or who were waiting for their medical exemption request to be determined).  Furthermore, because full vaccination was not as effective against Omicron, the union argued that the policy, which had not been amended to require a booster, was questionable.

Decision

In his decision, Arbitrator Kaplan found, as agreed by both parties’ experts, that vaccination is the best way to prevent transmission of COVID-19 in schools.  He stated that he preferred the TDSB’s expert’s opinion that RATS do not provide the same level of protection to staff and students and they should only be relied upon where absolutely necessary, e.g., to facilitate essential and otherwise justified exemptions.   

The two issues before Arbitrator Kaplan were whether mandatory vaccination infringes section 7 of the Charter, and whether the policy was reasonable, including its vaccine attestation requirement, the requirement that employees be vaccinated to attend work, and placing non-compliant/unvaccinated employees on non-disciplinary leave without pay. 

Section 7 of the Charter

Arbitrator Kaplan concluded that that the policy did not violate anyone’s life, liberty or security of person and, accordingly, there had been no s. 7 Charter breach.  He noted that the policy did not require mandatory vaccination, mandate a medical procedure, or seek to impose one without consent, and emphasized, “Employees are not prevented in any way from making a fundamental life choice.”  Arbitrator Kaplan noted, however, that “Section 7 does not insulate a person who has chosen not to be vaccinated from the economic consequences of that decision.”  In addition, he concluded that there had been no violation of the principles of fundamental justice, and the policy was not arbitrary (“during the term of the Policy full vaccination facilitated a return to safe and sustained in-school learning”), overbroad (“it only went as far as necessary to achieve its objectives”), or disproportionate (“The consequences of non-compliance are purely economic and they are proportionate to the objective of preventing the transmission of COVID to employees and students in TDSB schools.”).

Reasonableness of the Policy

Arbitrator Kaplan concluded that while the policy was in force it was a reasonable exercise of management rights.  He noted that the starting point in this analysis is the OHSA, which requires an employer to take every precaution reasonable in the circumstances for the protection of the worker, and that the assessment of what is reasonable must be made based on expert evidence.  Arbitrator Kaplan also stressed that he was considering the issue in the context of schools where a significant percentage of the population was extremely vulnerable because they were ineligible for vaccination.  He concluded that the TDSB appropriately complied with the OHSA because “expert evidence is that vaccination was the number one and best method of reducing the contraction and spread of COVID-19.”  He also mentioned that the attestation requirement, mandated by law, “was a necessary corollary,” and that no complaint had been raised that personal information was not being “properly safeguarded and protected.”

In assessing the reasonableness of the policy, Arbitrator Kaplan also applied the test in KVP & Lumber/Sawmill Workers’ Union 1965 CarswellOnt 618 (KVP), which requires that a management rule or policy:

1. Not be inconsistent with the collective agreement;
2. Not be unreasonable;
3. Be clear and unequivocal;
4. Be brought to the attention of employees before the employer can act upon it;
5. Inform affected employees that breach could result in discharge if the policy was being used as foundation for discharge; and
6. Must be consistently enforced.

Arbitrator Kaplan found that the policy met all of the KVP requirements.  There was nothing in the applicable CAs that fettered the management right to introduce the policy; based on the medical evidence, the policy was reasonable; the policy was clear and unequivocal, as it was explained to the employees by the TDSB and the union and there was no evidence that anyone was under any misunderstanding about it; and, finally, the policy was consistently applied (by allowing for exemptions for essential workers as set out in the design matrix, and for employees with human rights claims, the policy was being applied in a careful and nuanced fashion, and this was not the kind of inconsistency that arbitrators have found voids a management policy under KVP).      

Bottom Line for Employers

We have reported on numerous arbitration awards in Ontario pertaining to mandatory vaccination policies in unionized workplaces in the context of the COVID-19 global pandemic. In each of these cases, the arbitrator considered the unique context in which the policy was implemented. When in TDSB and CUPE Arbitrator Kaplan noted that a significant percentage of the population in schools were ineligible for vaccination, he provided yet another example of this approach. In addition, TDSB and CUPE is consistent with the trend among arbitration awards in Ontario, which find that, provided they comply with the HRC, mandatory vaccination policies are reasonable and enforceable, and satisfy an employer’s obligation under the OHSA to take every reasonable precaution to protect the health and safety of its employees.

TDSB and CUPE is the first arbitration award we have written about that determined that a mandatory vaccination policy did not infringe s. 7 of the Charter because it did not impose vaccination without consent and allowed the employee to make a choice about whether to be vaccinated.  In arriving at this conclusion, the arbitrator emphasized that s. 7 does not insulate those who choose not to be vaccinated from the economic consequences of their choice.  

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