In a recent Ontario decision, Arbitrator Wright held that the COVID-19 Vaccination Policy was a reasonable exercise of management rights.

In accordance with the Chief Medical Officer of Health’s instructions, the University implemented a University-wide COVID-19 Vaccination Policy (the Policy) on September 22, 2021. Employees who were non-compliant with the Policy by failing to provide proof of full vaccination, without an approved exemption, and who were therefore unable to perform the required duties and responsibilities of their position without attending on University property, were placed on unpaid leave. The Policy provides that it is subject to change and review in the face of the evolving pandemic.

In the Chief Medical Officer of Health’s instructions, there was a choice provided to universities, whereby a university could give or not give an option to allow non-vaccinated employees to continue to work so long as they completed an educational session and submitted to regular rapid antigen testing. The University chose to not give that option in its Policy.

On March 1, 2022 COMOH issued a memo to the university sector confirming that its instructions were revoked. As such, post-secondary institutions can decide to continue their COVID-19 vaccination policies for the remainder of the academic term and beyond. The University decided to keep its Policy in force until May 1, 2022.

The Arbitrator held that it was reasonable for the University to not give the option for unvaccinated employees to work if they submit to rapid antigen testing.  The University’s policy thus required employees to be fully vaccination. In making its decision, Arbitrator Wright takes note of the following:

• The Office of COMOH provided that rapid testing protocols are not preventive and are not a replacement for immunization and should be used only in instances where vaccination is not possible. Arbitrator Wright finds that it was reasonable for the University to have given serious weight to the advice provided by the COMOH, especially in the context of the university sector.
• Universities are complex, multi-faceted institutions, serving the needs of students, staff, faculty and the community. The series of recommendations directed at post-secondary institutions made by public health officials, culminating in the Instructions made by the COMOH underlie the pressing health concerns that universities and other post-secondary institutions presented during the pandemic.
• Given the context, Arbitrator Wright held that it was reasonable for the University to remove its option of rapid antigen testing from its Policy in favour of one requiring vaccination, which the COMOH described as “the single most effective public health measure to reduce the spread of COVID-19.”

On the question of whether the Policy is otherwise reasonable when considered by itself, Arbitrator Wright finds that the policy is very similar to other mandatory vaccination policies in other sectors that have been found by arbitrators to be a reasonable response to the threat posed by COVID-19.

Arbitrator Wright distinguishes the decision from FCA Canada Inc v Unifor, Locals 195, 444, 1285, where Arbitrator Nairn declared FCA Canada Inc.’s vaccination policy to be of no force or effect as of June 25, 2022. Previously reported here.

• The University paused the policy effective May 1, 2022. This is well before Arbitrator Nairn issued her decision on June 17^th, 2022. The evidence before Arbitrator Nairn were scientific articles and other publications resulting in the conclusion that the policy was unreasonable. There is nothing in the award to suggest she believed there was sufficient evidence for her to conclude that the policy was unreasonable from March 1st, 2022, to May 1st, 2022, which is the relevant period in the present case.
• Also, Arbitrator Narin’s reasoning was specific to a policy requiring two doses of vaccine; whereas, the University’s policy does not define “fully vaccinated” to mean two doses of the vaccine. Rather, it tied the definition of “fully vaccinated” to on-going public health pronouncements.
• In addition, the policy in FCA did not incorporate a periodic review. The University’s policy incorporated a periodic review in accordance with public health information and legislative requirements.

Key Take-Away for Employers

• This decision is another example of the general acceptance by Ontario arbitrators of COVID-19 vaccination policies.  However the decision needs to be assessed in its context since the vaccination policy in question was in force until May 1, 2022 and is not currently in force.
• Although vaccination policies are continuing to be assessed on a case-by-case basis, incorporating a periodic review in an Employer’s COVID-19 Vaccination Policy may be a significant aspect Arbitrators consider when deciding whether the policy is reasonable.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to  contact a Mathews Dinsdale lawyer.