In a recent labour arbitration decision issued on November 11, 2021, Arbitrator Stout rejected an employer’s mandatory vaccination policy. The case involved a grievance by the Power Workers’ Union (“PWU”) against the mandatory vaccination policy implemented by the Electrical Safety Authority (“ESA”).
The PWU argued that the mandatory vaccination policy was a significant over-reach of management rights, violated the collective agreement and the employee’s privacy rights, and right to bodily integrity.
In the result, the Arbitrator concluded that the ESA’s mandatory vaccination policy was “unreasonable” in so far as employees could be disciplined or discharged for failing to get fully vaccinated. The Arbitrator went further to conclude that it was unreasonable to place employees on administrative leave without pay if they do not get fully vaccinated. The arbitrator did however confirm that it was reasonable to require that employees disclose their vaccination status so long as their personal health information was adequately protected and only disclosed on consent. The arbitrator directed the joint health and safety committee to review and revise their policies.
In his reasons, Arbitrator Stout stated in part the following:
…I agree that an individual employee’s rights, including the right to privacy, personal autonomy, and bodily integrity as well as rights under the Charter are fundamental to a just and democratic society. Such fundamental rights should not be easily abrogated or constrained by employers. However, these individual rights are not absolute and there are circumstances where the rights of the collective outweigh the rights of the individual.
…I have no evidence that [ESA’s] concerns have manifested themselves in any actual problems in the workplace that cannot be reasonably addressed under a policy that provides for a combined vaccination or testing regime or other reasonable means. At this point the ESA has legitimate concerns, but those concerns do not at this point justify imposing a mandatory vaccination regime with threats of discipline or discharge.
In the arbitrator’s view, disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, was “unjust”, emphasizing that “Employees do not park their individual rights at the door when they accept employment.”
In the arbitrator’s view, for workplace settings where employees can work remotely and there is no significant risk related to an outbreak, infections, or significant interference in workplace operations, then a reasonable less intrusive alternative, such as voluntary vaccination disclosure and testing may be adequate measures to curb COVID-19 transmission in the workplace.
Of significance to the arbitrator’s ruling, he noted that there is no government mandate requiring that all of the employer’s employees be vaccinated; there had not been any COVID-19 breakouts in the workplace; the vast majority of its employees were vaccinated (over 90%); the vast majority of work undertaken by employees was done remotely and many staff continued to work remotely; and there was no evidence that work had been impeded because a small percentage of its employees were not vaccinated.
Further, the arbitrator held that any medical information must be kept safe, secure and protected from disclosure and only disclosed on consent. Employees required to work on third party client sites should have the option of granting the employer the right to disclose their vaccination status to third-parties for the sole purpose of accessing worksites.
Despite widespread public support for mandatory vaccination policies, they may not hold up from a legal perspective. The reasonableness of a mandatory vaccination policy will likely depend on the specific workplace context, taking into consideration the following factors, including:
- the nature of the employer’s operations;
- the risk level associated with the work being performed;
- whether the individual is working with a vulnerable population;
- whether work can be done remotely
- the percentage of the workplace that is vaccinated;
- impact of unvaccinated to staff to operations; and
- whether less intrusive alternatives can be implemented.
More significantly, the decision suggests that the refusal to take the vaccine may not constitute ‘cause’ for discipline or termination. Cause for dismissal is the capital punishment of labour law and generally only reserved for the most serious types of misconduct. An employee who loses their job because of an unreasonable vaccine policy may be eligible for significant compensation.
1Electrical Safety Authority & Power Workers’ Union, RE: COVID-19 Vaccination Policy
*This article is for general informational purposes only. If you need legal advice about your employment situation, contact JPak Employment Lawyers for a consultation.