In recent weeks, arbitrators have released several new decisions related to COVID-19 vaccination policies implemented by employers. These include decisions upholding such policies, and a decision regarding who should bear the cost of testing and whether employees should be compensated for the time they take to test. A decision was also released upholding the termination of an employee who refused to get vaccinated as required by a Public Health Order for health care workers.

This article will provide an overview of these new decisions and how they compare to prior decisions.

Vaccination Policy Decisions

Unifor, Local 973 v Coca-Cola Canada Bottling Limited

On March 17, 2022, Ontario Arbitrator Mark Wright found the employer’s COVID-19 vaccination policy to be reasonable, enforceable and not in violation of the parties’ collective agreement. The Policy required employees to be fully vaccinated by January 1, 2022 or face disciplinary consequences that could include termination. Any employees not fully vaccinated by January 1, 2022 would initially be required to wear enhanced PPE before later having to submit to a mandatory rapid testing program. Any employee not vaccinated by January 31, 2022 would then be placed on unpaid leave, while partially vaccinated employees were granted more time to complete their vaccine series. The Policy also provided for accommodation for employees who were unable to get vaccinated based on a valid protected human rights ground, and required records of an employee’s second dose to be kept in compliance with privacy legislation. The Policy was set to be reviewed every three months.

The Arbitrator found that the Policy struck a reasonable balance between an employee’s interest to privacy and bodily integrity and the employer’s interest in maintaining workplace health and safety. In doing so, the Arbitrator noted:

• Employees have to attend the workplace to do their jobs and most of their work is done indoors and in close contact with other employees and members of the public.
• A combined vaccination and testing regime failed to keep the workplace safe during the Omicron wave, and that the reliability of testing had changed with Omicron’s onset.
• A large basis of the employer’s workforce tested positive even with a host of other safety measures in place to prevent transmission.
• Employees who could not be vaccinated were free to seek accommodation under the Human Rights Code, however the Arbitrator was clear that an inability to be vaccinated due to personal beliefs must give way to the health and safety concerns underlying the Policy.
• It was reasonable for employees to be put on notice of the consequences of non-compliance, and any employee who was terminated could challenge their termination on a just cause standard.

Toronto District School Board v CUPE, Local 4400

On March 22, 2022, Ontario Arbitrator William Kaplan found a vaccination policy to be reasonable. The Policy required all employees with direct contact with staff or students at a TDSB workplace to be fully vaccinated by November 1, 2021 or establish that they had a valid human rights exemption. Employees who did not disclose their vaccination status or become fully vaccinated within the prescribed timelines would be placed on unpaid leave. The Policy had been repealed by the time of the hearing due to a change in public health measures and Ministry of Education requirements, and the Arbitrator therefore focused on the reasonableness of the Policy while it was in force.

The Arbitrator found the Policy to be a reasonable exercise of management rights. He found vaccination to be the best method for reducing the transmission of COVID-19 in schools, and that it has been integral to keeping schools open. He further found that a rapid antigen testing regime would not provide the same level of protection to both staff and students, especially in light of the tests’ decreased effectiveness with the onset of the Omicron variant, and that such tests should only be relied on in cases of absolute necessity. Vaccination was therefore found to be a reasonable rule and appropriate condition of employment.

The Arbitrator also found that:

• The Policy was a reasonable precaution in the circumstances under the Occupational Health and Safety Act.
• The Policy was clear and unequivocal, having been communicated to employees by both the Employer and the Union.
• The Policy had been consistently applied and done so in a careful and nuanced fashion, as it allowed for a number of unvaccinated essential workers to return to work in order to keep schools open and await the determination of human rights claims.

BC Hydro & Power Authority v International Brotherhood of Electrical Workers, Local 258

On March 21, 2022, British Columbia Arbitrator Gabriel Somjenm Q.C. found a mandatory vaccination policy to be reasonable, except for a portion of the Policy that related to discipline.

The Policy required employees to be fully vaccinated by January 10, 2022. Those who did not comply with the Policy would be placed on unpaid leave and may be subject to discipline up to and including termination. The Policy further provided for accommodation of those who could not get vaccinated for valid human rights reasons, and that information would be collected and used in accordance with the Freedom of Information and Protection of Privacy Act.

In finding the Policy to be reasonable, the Arbitrator found that COVID-19 had a profound effect on the Employer’s workforce even with the implementation of the policy and other mitigating measures. He found that vaccination is the best measure to protect employees from COVID-19 and that a rapid antigen testing regime would not have the same effect, especially given rapid tests’ decreased effectiveness in light of the Omicron variant. The Arbitrator also found that certain contextual factors, such as employees having to work in close camp or indoor settings, having to travel in vehicles with other employees, and being in contact with contractors and customers, indicated vaccination was the best method to mitigate the risks of COVID-19. He also found that the interests that led to the Policy outweighed the significant intrusion on the interests of employees.

However, the Arbitrator found the discipline portion of the Policy to be unreasonable. Specifically, it was unreasonable for unvaccinated employees placed on a non-disciplinary unpaid leave to later be subject to possible discipline for the same conduct, given the Employer had achieved its stated health and safety goal of having only vaccinated employees working. Further, the Arbitrator noted that the circumstances of the pandemic have changed and will continue to do so, and the Policy could later be amended to allow unvaccinated employees to return to work. The Arbitrator recognized that the Employer at some point may have reason to terminate an employee for non-culpable reasons, which can subsequently be reviewed by an arbitrator. However, as the circumstances currently stand, the Arbitrator found it to be unreasonable for the Policy to include discipline for declining vaccination.

Extendicare Lynde Creek Retirement Residence v UFCW, Local 175

On April 4, 2022, Ontario Arbitrator Raymond found a retirement home’s COVID-19 vaccination policy to be a reasonable workplace rule. It was consistent with the parties’ collective agreement, the Occupational Health and Safety Act, the Retirement Homes Act, 2010, and other relevant authorities.

The Policy, which became effective on October 12, 2021, requires all new and existing employees to be fully vaccinated, which includes receiving any booster vaccinations that are recommended by Health Canada now and in the future. Employees who are not fully vaccinated as defined by the Policy are placed on an unpaid leave of absence, and if they remain unvaccinated they can be subject to additional corrective action up to and including termination.

In rendering his decision, the Arbitrator noted that:

• The Policy remained reasonable even though the Ontario Government and other public health authorities have recently reduced or eliminated various vaccination and other COVID-19 related requirements for retirement and long-term care homes, as well as in other settings.
• The Policy was reasonable irrespective of whether the Employer decides at any time to conduct rapid antigen or PCR testing.
• The requirement to receive boosters was reasonable.
• Any additional discipline as a result of non-compliance with the Policy can be reviewed on the usual just cause standard.

Maple Leaf Foods Inc., Brantford Facility v UFCW, Local 175

On April 10, 2022, Ontario Arbitrator Peter Chauvin found an Employer’s vaccination policy to be reasonable and enforceable under the requirements of KVP, which is the leading case regarding the enforceability of an employer’s unilaterally implemented policy.

The Policy, which was introduced on January 28, 2022, required all employees and contractors to be fully vaccinated by March 31, 2022. Employees could request medical exemptions or human rights accommodations under the Policy, which would be handled on a case-by-case basis. Employees who did not declare their vaccination status or were not fully vaccinated by March 31, 2022 were placed on unpaid leave (or in the case of a contractor, were not allowed on Maple Leaf properties) and would be subject to further discipline up to and including termination.

In finding the Policy to be reasonable, the Arbitrator noted a number of factors, including:

• There were a number of workplace conditions that heightened the risk of COVID-19 within the Employer’s plants, such as the fact that employees must attend the workplace to do their jobs, they work in close quarters and routinely interact with each other, and that there had been 2,993 infections and 5 deaths among employees in the Employer’s plants across Canada.
• The current mitigation measures implemented by the Employer, along with a rapid testing program, would not have sufficiently protected the workplace without the additional vaccine requirement.
• The Policy was still reasonable in light of the recent changes in both the Provincial Government’s and the Employer’s COVID-19 guidelines.
• Other factors cited by the Arbitrator as supporting the reasonableness of the Policy were the Employer’s duty under the Occupational Health and Safety Act to take every reasonable precaution under the circumstances to protect its workers, that the Policy reasonably balanced the interests of both the Employer and the employees, and that it provided for valid human rights exemptions and accommodations.

In accordance with the requirements of the KVP test, the Arbitrator also found the Policy was consistent with the collective agreement, that it was clear and unequivocal, it was brought to the employees’ attention before being acted upon, it notified employees of the consequences of non-compliance and non-compliance did not automatically lead to certain discipline, and there were no grounds to find that the Policy had not been consistently enforced.

Other COVID-19 Vaccination Decisions

Finning (Canada) v. International Association of Machinists and Aerospace Workers Vancouver Lodge 692

On March 31, 2022, British Columbia Arbitrator Lisa Southern found it to be unreasonable for employees to be required to cover the cost of rapid testing under an Employer’s vaccination policy. However, she held that the Employer was not required to compensate employees for the time to take rapid tests.

The Employer had implemented a COVID-19 Vaccination Disclosure Policy which required employees either to disclose that they had been fully vaccinated against COVID-19 or show proof of a negative rapid antigen test at least 72 hours prior to entering the Employer’s premises. The Policy stipulated that those employees requiring a rapid test must pay the expense of the test and conduct the test on their own time. The Union argued that the Policy was unreasonable and inconsistent with the Collective Agreement.  

The Arbitrator found that the Collective Agreement supported that when the Employer requires a workplace health and safety measure, it pays for that measure. The Arbitrator did not see the difference between something like safety equipment or PPE, and rapid testing as a relevant distinction.

The Arbitrator also dismissed the Employer’s argument that by making the choice of taking the test a less desirable option (through the cost and time associated with taking it), more employees would get vaccinated, which was the Employer’s goal with the Policy. The Arbitrator noted that:

Although the Arbitrator thought it was unreasonable for the employee to bear the cost of the test, she disagreed with the Union’s argument that the Employer must pay for the time it takes the employees to take the test as “time worked.” The Arbitrator noted that the employees were able to take the test from the comfort of their own homes, and the time needed for the test was minimal and would not warrant compensation. Accordingly, this portion of the Policy was found to be reasonable. 

Fraser Health Authority v. BCGEU (Lorianna Capozzi Termination Grievance)

On April 4, 2022, British Columbia Arbitrator Kandola upheld an employer’s decision to terminate a healthcare employee who refused to get vaccinated in accordance with a Public Health Order mandating vaccination for all B.C. healthcare employees. While the Arbitrator acknowledged the Grievor’s right to make decisions about her own health, she noted that the result of the Grievor’s choices was that she rendered herself, by virtue of the terms of the Public Health Order, ineligible to work for the employer in any capacity.  

In her decision, the Arbitrator also drew attention to the fact, unlike many other pandemic related Public Health Orders, that the order in question did not have an expiry date. Accordingly, and given that the Grievor advised the employer that she had no intention of ever becoming vaccinated, the Arbitrator explained that there was “no path forward” for the Grievor for continued employment. She also emphasized the importance in her reasoning of “the serious operational impacts on the health care system associated with placing unvaccinated employees on unpaid leaves of absence of unknown duration.” Despite the seriousness of termination and the Grievor’s unblemished disciplinary record, the Arbitrator concluded that the employer was not required to place the Grievor on a leave of absence of indefinite duration, and she also found that no lesser alternative to termination was reasonably available.

The Grievance, therefore, was dismissed. 

How These Cases Compare to Prior Vaccine Policy Awards and Implications for Employers

Arbitrators have been analyzing COVID-19 policies on a case-by-case basis, and these new awards are no exception. Nevertheless, a few trends are emerging:

• Arbitrators are accepting evidence of decreased effectiveness of rapid antigen testing as an alternative to mandatory vaccination.
• Arbitrators are acknowledging that the circumstances surrounding the pandemic are constantly changing, and therefore the reasonableness of measures can also change. An example of this is the Electrical Safety Authority and PWU case from November 2021, where an Ontario Arbitrator found a mandatory vaccination policy to be unreasonable 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 that approach. However, based on these recent decisions, it appears the Omicron variant is causing arbitrators to think differently about using rapid antigen testing in lieu of mandatory vaccination.
• Typically, at least in Ontario and B.C., arbitrators are finding that employers should bear the cost of rapid testing but employees should not be compensated for the time it takes to test.
• At issue in many of these cases are the policy’s consequences for failing to be vaccinated, and whether those consequences are reasonable. The Coca-Cola and TDSB decisions are two additions to the list of cases where unpaid leave was found to be a reasonable consequence. However, the BC Hydro case is a departure from that line of cases in that it was deemed unreasonable at the time for the policy to provide for any discipline beyond the non-disciplinary unpaid leave.
• Arbitrators still view COVID-19 vaccination policies as reasonable in light of the recent changes in public health guidance and restrictions. This was the case in both the Extendicare and Maple Leaf Foods decisions. For now, it is clear the loosening of restrictions has not swayed arbitrators’ thinking that COVID-19 is still a large enough threat to the workplace to warrant mandatory vaccination policies.

We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.

We gratefully acknowledge the assistance of Christian Rocca, an Articling Student in the firm’s Toronto office, in the drafting of this article.