Arbitrator Strikes Down Mandatory Vaccination And Disclosure Policy

In a decision released on November 11, 2021, Arbitrator John Stout allowed a grievance filed by the Power Workers’ Union (the “PWU”) against the Electrical Safety Authority (the “ESA”) challenging a mandatory vaccination and disclosure policy.

In September 2021, the ESA adopted a voluntary vaccination disclosure and testing policy (the “Voluntary Policy”) that allowed employees who did not voluntarily disclose their COVID-19 vaccination status to be tested regularly. On October 5, 2021, the ESA introduced a mandatory vaccination and disclosure policy that required all employees to disclose their vaccination status, with no testing alternative for those that were unvaccinated or chose not to disclose their vaccination status (the “Mandatory Policy”). Under the Mandatory Policy, employees who did not disclose their status or were not vaccinated would not be permitted to engage in interval testing as an alternative and could be disciplined, discharged, and/or be placed on an unpaid leave of absence.

According to Arbitrator Stout, “[e]mployees do not park their individual rights at the door when they accept employment.” He reasoned that the right of an employee to privacy and bodily integrity and the right to a safe and healthy workplace were both fundamental and adopted a fact-specific and contextual approach to determining the reasonableness of the Mandatory Policy. He noted that, on the one hand, in “workplace settings where the risks are high and there are vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated), then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.” On the other hand, in “workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a reasonable less intrusive alternative…may be adequate to address the risks.”

In determining the reasonableness of the Mandatory Policy, Arbitrator Stout considered the following:

• Nothing in the collective agreement between the ESA and the PWU specifically addressed vaccinations;
• ESA employees were not required to be vaccinated as a condition of employment;
• There was no government mandate that all ESA employees be vaccinated;
• The ESA had done a “tremendous job” protecting its employees from COVID-19 and since March 2020:
  • There had been no COVID-19 outbreaks in the workplace; and
  • Only 7 employees out of 415 had contracted COVID-19, only 2 of which were possibly work-related;
• Over 84% of ESA employees had been voluntarily vaccinated and disclosed their vaccination status and only 14 of 415 employees had not disclosed their vaccination status;
• Nothing about the COVID-19 situation at the ESA had significantly changed between September 2021 when the ESA implemented the Voluntary Policy and October 5, 2021 when it implemented the Mandatory Policy;
• The ESA provided no evidence of how a combination of voluntary vaccination with a testing alternative made it more difficult to protect its employees from the risks of COVID-19 or that similar policies were generally ineffective at addressing health and safety concerns in a workplace;
• The majority of ESA employees had been working remotely since March 2020 and had a right to continue doing so under the collective agreement; and
• The ESA provided no analysis of workplace dangers or hazards, no evidence of actual problems in the workplace and no evidence of substantial interference with its business that could not be addressed by a voluntary vaccination and disclosure policy with a testing alternative.

Arbitrator Stout held that although the ESA’s concerns with respect to COVID-19 were legitimate, they did not justify imposing a mandatory vaccination and disclosure regime with threats of discipline or discharge. He concluded that the Mandatory Policy was unreasonable to the extent that it required employees to be vaccinated and did not provide for a testing alternative for those employees that remained unvaccinated or refused to disclose their vaccination status. He also concluded that it was unreasonable to discipline, discharge and/or place on an unpaid leave of absence employees that remained unvaccinated or who refused to disclose their vaccination status. By contrast, Arbitrator Stout held that the parts of the Mandatory Policy requiring employees to confirm their vaccination status were reasonable so long as their personal medical information was adequately protected and only disclosed with their consent.

Noting that the ESA had implemented the Mandatory Policy without first raising its concerns with the Joint Health and Safety Committee, Arbitrator Stout held that the ESA had “jumped to a hasty conclusion” and acted prematurely without considering the individual rights of employees.

Arbitrator Stout allowed the grievance and, in doing so, made several orders, including a direction that the ESA provide a testing option to employees who remained unvaccinated and directing that the Mandatory Policy be referred to the Joint Health and Safety Committee for review.

This decision does not suggest that all workplace mandatory vaccination and disclosure policies are unreasonable or that arbitrators are likely to strike them all down. The decision does, however, confirm that determinations as to whether a vaccination policy is reasonable will be extremely fact and context driven. For example, the decision of Arbitrator Stout might have been different if there had been a lower percentage of ESA employees that had disclosed their vaccination status or were unvaccinated, if the ESA was a workplace with vulnerable population, if there had been several COVID-19 outbreaks in the workplace, or if employees did not have the option of continuing to work remotely. We will continue monitoring how this decision is interpreted in future arbitration proceedings.