Ontario Arbitrator Issues New Award on Vaccination Policy

Employers now have several arbitration decisions to help guide their COVID-19 policies, with more expected in the near future. In addition to last week’s Paragon Protection case, at least two other Ontario arbitrators have now weighed in on how employers can protect their workplaces.

Electrical Safety Authority and PWU (November 11, 2021)

The first case is that of Arbitrator John Stout in Electrical Safety Authority and PWU. Applying a highly context-specific analysis, he found the employer’s vaccine policy to be unreasonable, but warned that his decision “should not be taken as a vindication for those who choose, without legal exemption, not to get vaccinated.”

Specifically, Arbitrator Stout considered a policy which required all employees to provide proof of full vaccination by December 22, 2021, or face potential disciplinary measures, up to and including termination. Under the policy, the employer also had the discretion to place employees who did not meet the policy’s requirements on unpaid leave. Arbitrator Stout held that these consequences were – at least at this stage – unreasonable. This was in part because the employer had previously permitted regular COVID-19 testing as an alternative to vaccination and had not provided any evidence of difficulties in protecting the workplace using this combined vaccination and testing regime. Further, there was no evidence of any significant change in the situation that would warrant a change in policy, other than a fear that mandatory vaccination rules by third-parties could interfere with the employer’s business, and a general desire to bring employees back to the office. Thus, in these particular circumstances, it was unreasonable to discipline or discharge an employee for failing to be vaccinated, as testing was a reasonable alternative to vaccination.

Arbitrator Stout noted that in workplace settings where the risks are high and there are vulnerable populations (e.g. people who are sick, the elderly, or children who cannot be vaccinated) then mandatory vaccination policies may be reasonable and perhaps even required to protect those vulnerable populations. However, in workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, then a reasonable less intrusive alternative (such as voluntary vaccination disclosure and a rapid testing policy) may be adequate.

Throughout his decision, Arbitrator Stout emphasized that the situation surrounding COVID-19 is fluid and that “what may have been unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.” It is also clear from his decision that arbitrators will be considering vaccination policies on a highly contextual and case-by-case basis.

Ontario Power Generation and PWU (November 12, 2021)

In this case, Arbitrator John C. Murray considered a proposed policy whereby employees who were unvaccinated (or refused to disclose their vaccine status) were required to self-administer a rapid antigen test on a regular basis.

He held that employees who are required to undergo this testing must do so on their own time, prior to reporting to work, and are not entitled to compensation for the time spent in the administration of the test or in the reporting of the results. However, the cost of the testing itself is to be borne by the employer.

In addition, the arbitrator upheld OPG’s intended treatment of employees who are unvaccinated (or refuse to disclose their vaccination status) and do not agree to undergo rapid testing. This intended treatment was:

  • Placing those employees on an unpaid leave of absence for 6 weeks to consider whether they are willing to partake in the testing regime; and
  • Terminating their employment at the end of the 6-week period.

Arbitrator Murray held that the 6-week unpaid leave of absence was reasonable since those employees are “refusing to take the necessary and reasonable step of taking a minimally intrusive test that would demonstrate that they are fit to work and do not present an unnecessary risk to their co-workers during a global pandemic that has cost 29,000 lives in this country and at least 5 million world-wide.”

He observed that:

“…in these circumstances, it is completely within the control of the employee to decide when to come back to work. All they need to do is to agree to participate in the Rapid Antigen Testing programme which is designed to reduce the risk they present to their fellow employees by remaining unvaccinated…”

With regard to the termination of these employees at the end of the 6-week period, Arbitrator Murray said:

 “…in the context presented by this global pandemic, when lives of co-workers are at risk, unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and refuse the potential risk they present their co-workers […]. It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, employees who refuse testing will likely will have made a decision to end their career with this Company.”

These awards demonstrate how quickly the legal landscape surrounding COVID-19 is evolving, but that the reasonableness of a vaccine policy will be highly fact- and context-specific.

If you have any questions about COVID-19 vaccination policies, other COVID-19 related issues or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

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