Arbitrator Jesin upholds MLSE mandatory vaccination and status disclosure policy
January 14, 2022
In a decision released on January 12th, 2022, Arbitrator Jesin held that a workplace mandatory Covid-19 vaccination policy and associated vaccination status disclosure requirement issued by Maple Leaf Sports and Entertainment (“MLSE” or the “Employer”) for employees working at its Toronto sports and events venue Scotia Bank Arena was a reasonable exercise of the Employer’s management rights under the collective agreement and did not breach any provisions of the collective agreement or relevant legislation. The Arbitrator therefore denied the grievance by Teamsters Local Union 847 (“Teamsters” or the “Union”) in respect of an employee (the “grievor”) who had been placed on an indefinite leave of absence following the non-disclosure of his vaccine status.
Factual background and arguments
MLSE announced in September, 2021 that all employees working at Scotia Bank Arena were required to be fully vaccinated against Covid-19 no later than October 31st, 2021. Under that policy, an employee’s failure to be vaccinated or to disclose their vaccination status by that date would result in them being placed on an unpaid leave and possibly terminated.
The Employer’s policy was released following a provincial governments announcement that all patrons of certain indoor events, including those at Scotia Bank Arena, had to be fully vaccinated by September 1st, 2021. In addition, MLSE relied on additional factors in support of its policy, including: i) there had been a prior outbreak at Scotia Bank Arena in April of 2021 where 6 employees tested positive for Covid-19; ii) a recommendation by the Toronto Medical Officer of Health that urged local employers to institute workplace vaccination policies to protect employees from Covid-19; and iii) August, 2021 statistics released by the Ministry of Health establishing that Covid-19 vaccination provides significant protection against hospitalization and serious illness.
The grievor worked in the conversion department at Scotia Bank Arena. Conversion employees converted the venue space between different types of events hosted at the venue. In this role, the grievor worked in close proximity to other employees and occasionally with staff and players on the professional sports teams that utilize the venue. Up to 100 employees may work on a conversion project.
The grievor did not disclose his vaccine status to MLSE by October 31st, 2021 and was placed on unpaid leave.
Teamsters argued that the policy breached the grievor’s rights under the collective agreement. In particular, the Union contended that the policy breached the grievor’s entitlement under the seniority provisions which guarantee working employees preference in job selection based on seniority. The Union also argued that the policy breached the grievor’s entitlement under the collective agreement to minimum working hours per pay period.
In addition, the Union argued that an employee’s vaccination status is private medical information, and that an employer’s obligations under the Occupational Health and Safety Act (“OHSA”) to protect employees could be satisfied through the requirement of frequent rapid antigen testing instead of through the mandatory vaccination policy. The Union contended that they were not challenging the mandatory vaccination policy directly, but instead the associated requirement of disclosing private medical information.
MLSE argued that there was no breach of seniority or minimum work hour provisions because those provisions contemplated that an employee is fit to and entitled to work and that failing to comply with the policy rendered an employee unable to establish their ability to perform the work in question. Therefore, they contended that the policy was a reasonable exercise of management rights and did not breach the collective agreement.
In addition, the Employer relied on their obligations under OHSA to take every reasonable precaution to protect employees to justify the policy and to argue that it was superior to a rapid testing regime, which they argued is not as effective at reducing transmission of Covid-19. MLSE put forward that the disclosure requirement was reasonable in light of case law which demonstrates that privacy interests are not inviolable and must be balanced against other legitimate interests, such as the health and safety of their employees.
Arbitrator Jesin denied the grievance. In doing so, he found that “It is clear that the weight of authority supports the imposition of vaccine mandates in the workplace to reduce the spread of Covid 19. That is particularly so where employees work in close proximity with other employees, as they do in this case” (para 19). Arbitrator Jesin noted that the authority to mandate Covid 19 vaccination arises both from management’s rights to implement reasonable rules and from employers’ obligations to protect workers under occupational health and safety law.
Arbitrator Jesin was inclined to view the challenge to the disclosure requirement as a challenge to the mandate itself as the disclosure was necessary for the implementation of the plan, and noted that arbitral jurisprudence makes clear that employers are entitled to seek disclosure to implement a necessary vaccine policy. However, Arbitrator Jesin noted that the entitlement to request information is limited to the extent necessary to implement the plan. In addition, he emphasized the importance of appropriate confidentiality and security measures with regards to the medical information, which he found were adequately taken in this case. Vaccine status information was disclosed only to limited employees on a need-to-know basis and discipline could flow from breaches of the confidentiality requirement in the handling of that information.
Arbitrator Jesin found that the policy did not breach the seniority or minimum hours articles of the collective agreement on the basis that the policy established a necessary qualification for the performance of work given the ongoing pandemic. The policy was therefore a “reasonable and appropriate approach to fulfilling its duties under OHSA for the protection of all workers in its employ” (para 21).
Authored by Luka Ryder-Bunting