Update on Arbitral Challenges to Mandatory COVID-19 Vaccination Policies

Update on Arbitral Challenges to Mandatory
COVID-19 Vaccination Policies

Since late 2021, several arbitral awards have addressed a union’s challenge to an employer’s
mandatory COVID-19 vaccination policy through the grievance and arbitration process. Focus Alert
readers will recall our past articles discussing these cases, including Paragon Protection Ltd., Electrical
Safety Authority and Bunge Hamilton Canada. In particular, readers will recall that throughout these
awards, arbitrators were largely erring on the side of caution and minimizing health risks to
employees and the public in upholding employers’ mandatory COVID-19 vaccination policies.

As the pandemic continues to affect daily life, we have seen numerous additional arbitral awards
addressing similar challenges. The following article is intended to provide an update on arbitral
challenges to employers’ mandatory COVID-19 vaccination policies through January and early
February of 2022. As will be detailed, arbitrators continue to err on the side of caution in upholding
many such policies. That said, the most important lesson to be drawn from these decisions is that
what constitutes a reasonable mandatory COVID-19 vaccination policy continues to be highly
contextual and dynamic.

            Teamsters Local Union 847 and Maple Leaf Sports and Entertainment

                                          (January 12, 2022)

Outcome: Grievance dismissed; Policy upheld

In this matter before Arbitrator Norm Jesin, a grievance was filed in respect of Maple Leaf Sports and
Entertainment’s COVID-19 Vaccination Policy (the “Maple Leaf Policy”). The Maple Leaf Policy
indicated that as of October 31, 2021, all employees would have to be fully vaccinated. It also
explicitly provided for various protective measures to ensure the confidentiality of all disclosed
information regarding vaccination status and, where applicable, underlying medical information.
Finally, it indicated that non-compliance with the Maple Leaf Policy would result in an employee being
placed on an indefinite unpaid leave of absence and potentially being subject to termination.

By way of background, the employer operates a number of professional sports teams, and employed
the grievor in its conversion division at Scotia Bank Arena. In his position, the grievor could be
required to work in close proximity with up to 100 other employees assisting in the conversion of the
arena from one type of event to another. From time to time, he might even be required to work in the
presence of players from one of the employer’s sports teams. Following implementation of the Maple
Leaf Policy, the grievor refused to disclose his vaccination status and was accordingly placed on an
unpaid leave of absence.

In respect of the grievance, the union argued that the employer had violated the grievor’s seniority
rights as provided for in the collective agreement. More fundamentally, however, the union argued
that an employee’s vaccination status is private medical health information and, as such, should not
be subject to disclosure in the circumstances. In the union’s view, it was not challenging the COVID-19
vaccination mandate in the Maple Leaf Policy, but rather simply opposing the requirement in the
policy for the disclosure of vaccination status.

For its part, the employer took the position that it had not denied the grievor’s seniority rights.
Furthermore, the employer argued that the Maple Leaf Policy had been implemented in furtherance of

its obligation under the Occupational Health and Safety Act (“OHSA”) to take every reasonable
precaution for the protection of a worker. When weighed against relevant privacy rights, the employer
was of the view that this obligation tipped the balance in favour of the Maple Leaf Policy.

Despite the union’s contention, Arbitrator Jesin indicated that he viewed the grievance as a challenge
to the Maple Leaf Policy, since the employer had no way of enforcing a COVID-19 vaccination
mandate without requiring the disclosure of employees’ vaccination status. Arbitrator Jesin concluded
that the weight of arbitral authority supported the imposition of COVID-19 vaccination mandates in
the workplace to reduce the transmission of the virus, particularly where employees work in close
proximity to others. Furthermore, he concluded that arbitral authority makes it clear that employers
are indeed entitled to seek disclosure of employees’ vaccination status to the extent necessary to
administer a COVID-19 vaccination mandate in the workplace, particularly if the disclosed information
is properly safeguarded. Finally, he did not accept the union’s argument that the grievor’s seniority
rights were being denied. Rather, he noted, the employer had established that being vaccinated was
a necessary qualification for the performance of work within the bargaining unit, and such a
determination was reasonable in the context of the current pandemic. More fundamentally, however,
Arbitrator Jesin accepted that it was a reasonable and appropriate approach to fulfilling the
employer’s duties under the OHSA.

                            Hydro One Inc. and Power Workers’ Union

                                          (January 31, 2022)

Outcome: Grievances dismissed; Policy upheld

In this matter before Arbitrator John Stout, twelve individual grievances were filed in respect of Hydro
One’s COVID-19 Vaccination Policy (the “Hydro One Policy”). The Hydro One Policy indicated that as of
October 22, 2021, all employees would be required to provide proof of vaccination status or to
provide confirmation of a medical exemption, of an exemption under the Ontario Human Rights Code,
or of a refusal to disclose vaccination status. Beginning on November 8, 2021, those employees who
were unvaccinated or who refused to disclose their vaccination status would be required to undergo
regular rapid antigen testing prior to reporting to work.

The grievors had each been placed on an unpaid leave of absence for failure to comply with the Hydro
One Policy. More specifically, the grievors had each failed to comply with the requirement to either
provide proof of vaccination status or of a negative rapid antigen test result for various reasons. All of
the grievors did eventually comply with the Hydro One Policy and return to work, with the exception
of one who instead retired.

In respect of the grievances, the union argued that the employer had violated the collective
agreement by acting unreasonably in addressing various concerns raised by the grievors with respect
to the testing and reporting protocols contained in the Hydro One Policy. In its view, the grievors
should not have lost wages for their ‘early non-compliance’ and instead should have been able to
work remotely, where possible. The union requested payment to all grievors for the period of time
they were on an unpaid leave of absence.

For its part, the employer took the position that the Hydro One Policy was a reasonable response to
the current pandemic, and that it was reasonable for it to place the grievors on an unpaid leave of
absence when they failed to comply with its reasonable terms.

Ultimately, Arbitrator Stout held that the Hydro One Policy was reasonable and necessary to address
the ongoing health and safety concerns arising from the pandemic. He further held that the grievors

had reasonable advance notice about the requirements of the Hydro One Policy, and that the
employer had adequately addressed their concerns, once raised, in good faith and within a
reasonable period of time. In the result, Arbitrator Stout held that prohibiting employees from
attending work in the absence of proof of vaccination status or of a negative rapid antigen test result
was fair and reasonable in the circumstances. He further held that accommodation of the grievors
through remote work was not necessary or required in the circumstances, as they had already been
provided with the reasonable alternative of rapid antigen testing.

                           Power Workers’ Union v. Elexicon Energy Inc.

                                           (February 4, 2022)

Outcome: Grievance upheld in part

In this matter before Arbitrator Mitchell, a policy grievance was filed in respect of Elexicon Energy
Inc.’s COVID-19 Vaccination Policy (the “Elexicon Policy”). The Elexicon Policy indicated that as of
February 21, 2022, all employees would be required to provide proof of full vaccination status or to
provide confirmation of an exemption under the Ontario Human Rights Code. It also indicated that
unvaccinated employees or those unwilling to disclose their vaccination status would be required to
bear the cost of rapid antigen testing and contribute to the cost of PCR testing. Finally, it indicated
that those employees who were non-compliant with the Elexicon Policy would be placed on an unpaid
leave of absence and would potentially be subject to termination.

In respect of the grievance, the union argued that the Elexicon Policy was unreasonable and overly
broad in the circumstances. The union also objected to the requirement that unvaccinated employees
or those unwilling to disclose their vaccination status bear any cost in relation to testing. Rather, in its
view, the cost of testing, both in time and expense, should be borne by the employer.

For its part, the employer took the position that the Elexicon Policy was reasonable. It argued that it
had considered public health recommendations and governmental standards to inform its approach to
addressing a pressing health and safety needs, as well as operational considerations needed to
provide an essential public service. As for discipline as a consequence for non-compliance with the
Elexicon Policy, the employer argued that it would not be rushing to impose discipline and, in any
event, any such discipline would remain subject to arbitral review on its own facts. Finally, the
employer argued that it was reasonable for employees to bear costs in relation to testing, as the
employer should not be forced to bear the costs associated with an employee’s “personal choice that
needlessly jeopardizes the health and safety of colleagues, clients and members of the public”.

Ultimately, Arbitrator Mitchell concluded that the general policy of the employer requiring vaccination
by its employees was reasonable in the circumstances, particularly in light of the employer’s health
and safety obligations, the fact that it provides an essential service, as well as the available scientific
data on the transmissibility of COVID-19 and on the efficacy of immunization. That being said,
Arbitrator Mitchell also concluded that the Elexicon Policy was not reasonable to the extent of its
application to employees who have been working exclusively from home and for whom there was no
expectation of a return to the office for several more months, and to employees who work exclusively
outside or who can be accommodated such that they can work exclusively outside. In light of his
findings in respect of the Elexicon Policy, Arbitrator Mitchell did not deem it necessary that he rule on
the cost of testing issue, but did remain seized to deal with that issue if necessary.

Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford)
           v. Healthcare, Office and Professional Employees Union, Local 2220

(February 7, 2022)

Outcome: Grievance upheld

In this matter before Arbitrator Gail Misra, a policy grievance was filed in respect of Chartwell’s
COVID-19 Vaccination Policy (the “Chartwell Policy”). The Chartwell Policy, which was put in place in
four (4) Chartwell long-term care homes in south western Ontario pursuant to the Minister of Long-
Term Care’s Directive regarding the “Long-Term Care Home Immunization Policy” (the “Directive”),
initially indicated that vaccination against COVID-19 would be strongly recommended. Eventually,
however, the Chartwell Policy was amended to make vaccination mandatory. More specifically, the
Chartwell Policy indicated that as of September 2021, all employees would be required to provide
proof of vaccination status or proof of a medical exemption. Beginning on October 12, 2021, those
employees who were non-compliant with the Chartwell Policy would be placed on an unpaid leave of
absence and would potentially be subject to termination.

Once vaccination was made compulsory, the union raised objections with the Chartwell Policy and
instituted the grievance proceedings. On October 1, 2021, however, the Directive was amended to
require, rather than recommend, vaccination. More specifically, the revised Directive indicated that all
existing staff would have to provide proof of vaccination status or of a medical exemption; otherwise,
they would not be permitted to attend a long-term-care home to work. Of note, the union did not
challenge the constitutionality of the revised Directive in the course of the grievance proceedings.

In total, 15 bargaining unit members were placed on an unpaid leave of absence for non-compliance
with the Chartwell Policy. In December of 2021, 14 of these individuals were ultimately terminated for
cause by the employer.

In respect of the grievance, the union argued that the employer had violated the collective agreement
both in imposing the Chartwell Policy and in failing to consult with the union prior to implementation.
Specifically, in its view, the inclusion of the disciplinary component of the policy was unreasonable
and exceeded the requirements of the revised Directive. The union requested, amongst other things,
full compensation to all employees adversely affected by its implementation.

For its part, the employer took the position that the Chartwell Policy was reasonable and not
inconsistent with the terms of the collective agreement. The employer argued that it is a basic
contractual requirement of employment that employees must comply with an employer’s reasonable
workplace rules, and that termination of employment was appropriate as a disciplinary consequence
for non-compliance in light of both health and safety concerns, as well as the quality of life of its
residents. The employer further argued that it had not breached the terms of the collective
agreement, including specifically those pertaining to the implementation of new workplace policies.

Ultimately, Arbitrator Misra held that the employer had in fact breached the collective agreement by
promulgating the Chartwell Policy without consulting with the union. While accepting that termination
for cause may be suitable in some circumstances, she further held that the Chartwell Policy was
unreasonable and inconsistent with the collective agreement to the extent that it included
termination as a potential consequence for non-compliance. In the result, she ordered that the
employer comply with the collective agreement in the future and that the statement “or may have
their employment terminated” be struck from the Chartwell Policy, unless the parties were to agree
otherwise.

In Our View

As demonstrated in the above-summarized decisions, arbitrators are, in many cases, still erring on the

side of caution in upholding employers’ mandatory COVID-19 vaccination policies as the pandemic
continues on. Even in the Elexicon Energy matter and in the Chartwell Housing Reit matter, although
the arbitrators did not fully uphold the policies in question, they did not entirely reject the policy, nor
the imposition of discipline for non-compliance. Rather, in the Elexicon Energy matter, Arbitrator
Mitchell took issue only with the scope of application of the policy, but not with the vaccination
mandate itself. Similarly, in the Chartwell Housing Reit matter, Arbitrator Misra took issue with the
disciplinary component of the policy in the circumstances before her, but noted:

      Despite my findings above, it is important to state that this decision should not be
      taken by those employees who choose not to get fully vaccinated as indicating
      that the Employer would never be able to terminate their employment for non-
      compliance with the policy in question, or indeed any reasonable policy. It is only
      the automatic application of this policy as it respects discharge that has been found to be
      unreasonable. Employees must understand that even if their Union and the Employer are
      unable to reach agreement pursuant to Art. 18.5, the Employer continues to have its
      Management Right under the collective agreement to terminate an employee for just
      cause. Hence, employees who remain non-compliant with the policy should not think that
      they are protected forever from the possibility of being dismissed, as the Employer may
      at some point do so if it feels it can establish that it has just cause for termination of any
      particular employee. No employer has to leave a non-compliant employee on a
      leave of absence indefinitely. At some point, and subject to the Employer
      warning employees of the possibility of termination, and having considered
      other factors, it will likely have just cause to terminate the employment of such
      an employee.[emphasis added]

Ultimately, then, there is now significant arbitral precedent in support of upholding mandatory
COVID-19 vaccination policies in the workplace. Employers must remember, however, that the
determination of whether such a policy is reasonable and not inconsistent with the applicable
collective agreement will depend on the specific circumstances in each particular case.

For more information on your rights and obligations as an employer dealing with COVID-19, please
contact Porter Heffernan at 613-940-2764 or J.D. Sharp at 613-940-2739.