Arbitrator upholds mandatory vaccination requirement for indoor workers

February 9, 2022

In a recent decision, Arbitrator Michael Mitchell upheld a policy on mandatory vaccination (which required two doses in addition to any recommended boosters) against COVID-19 as it applied to employees who work in an indoor setting at least some of the time.[1] The Power Workers’ Union (“the Union”) filed a policy grievance against the vaccination policy instituted by Elexicon (“the Employer”). Specifically, the Union challenged the compulsoriness of vaccination as well as the requirement for non-compliant employees to share the cost of COVID testing with the Employer. This decision is interesting in so far as it discusses mandatory vaccination policies in the context of the Occupational Health and Safety Act (“OHSA“),[2] the Omicron variant and vaccination requirements for employees who work indoors versus outdoors.

Facts

The Employer—a municipal energy distributor serving Ajax, Whitby, Oshawa, Belleville, and Gravenhurst—instituted its mandatory vaccination policy (“the Policy”) on October 28, 2021. The Policy is twofold: it requires all employees to confirm, by January 21, 2022, their full vaccination status. Full vaccination as per the Policy effectively requires three doses as well as any future recommended boosters. Additionally, the Policy requires that non-compliant employees fully and partially reimburse the Employer for, respectively, PCR and rapid antigen testing. Both the vaccination and testing requirements are subject to medical and human rights exemptions. Non-compliant employees are to be placed on unpaid leave and possibly subject to discipline including termination.

Of the total of 176 bargaining unit members, some work exclusively outdoors in the field and some work exclusively in office (some of whom work remotely until at least April 2022). In total, 21 employees had not confirmed their vaccination status.

Analysis

Context of the pandemic

As arbitrators have done in similar grievances, Arbitrator Mitchell noted the devastating impacts of the pandemic and its ever-changing nature, particularly given the rise of the Omicron variant. Citing various governmental regulations in the context of Omicron, he noted that the evolving situation “demonstrates very clearly that what constitutes a reasonable mandatory vaccination policy in the course of a pandemic is contextual and highly dynamic.”[3] This flux makes it such that arbitral precedents decided in a “completely different context, even as recently as November 2021” may become less relevant now.[4]

Obligations under OHSA

The Union had argued that there was no evidence that vaccination was more effective in preventing the spread of Omicron, even in conjunction with testing, masking, and distancing, than those measures alone without vaccination. While agreeing that vaccines reduce the risk of hospitalization and severe illness, the Union asserted that vaccines do not prevent an infected person, whether vaccinated or otherwise, from transmitting the virus to others. Therefore, essentially, measures other than vaccination were sufficient in defending against COVID-19, and in particular the Omicron variant.

Arbitrator Mitchell rejected this position by emphasizing the Employer’s obligations under section 25(2)(h) of OHSA, which provides that an employer shall “take every precaution reasonable in the circumstances for the protection of a worker.”[5] Under OHSA and as supported by the case law, employers can act to protect health and safety “even if it cannot be established with scientific certainty that there is a cause and effect relationship between the activity and the harm. The entire point is to take precautions against the as yet unknown.”[6] In the context of the grievance, despite the unknowns, it remains the case that, compared to the unvaccinated, vaccinated employees faced a lower risk of becoming severely infected with and thus transmitting the Omicron variant. Additionally, the efficacy of measures other than vaccination (i.e. masking and distancing) indoors in the face of Omicron remains unclear. The Employer’s obligation to act exists even in the absence of government vaccine mandates or similar employers instituting mandatory vaccination policies.

Balancing the interests of employees and employers

In considering the interests of employees as against the Policy, Arbitrator Mitchell emphasized the importance of work to peoples’ livelihood, particularly in the context of electrical power transmission where it may not be easily possible to find other employment in the same geographic area. Indeed, “the genuinely coercive nature of the [P]olicy”[7] could lead to serious and highly undesirable outcomes such as loss of income, benefits, seniority, and general stability. He noted:

In my view, arbitrators should take into account in the balancing exercise the deep dilemma of employees who strongly do not wish to be vaccinated whatever their motives, and who may have few or no other realistic choices to work elsewhere or who will have to give up a significant amount of earned benefits and stability if they choose not to get vaccinated. Just because there are hard choices, as opposed to no choice at all, does not make the policy not coercive, or render it more reasonable.[8]

However, having found that the Union’s objections to vaccine efficacy were unfounded, Arbitrator Mitchell additionally found that the Union had little to say on the reasonableness of employees’ objection beside the right to bodily integrity or the invasive nature of the Policy. This objection, while important, was not overly compelling. While Arbitrator Mitchell agreed that less invasive means should be imposed if possible, given the proven inefficacy of testing in the face of Omicron, a testing-only measure is currently not possible, although it may be required in addition.

Arbitrator Mitchell also addressed the Employer’s operational concerns. He found that, given the current trends, the Employer genuinely faced a risk of having its unvaccinated employees wind up in hospital. Additionally, the Employer provides an essential service and must thus take steps to ensure it can provide that service given the real threats to the health and availability of its workforce. The fact that there have been no operational issues before the introduction of the Policy is of little significance given the current situation with Omicron.

Overall, Arbitrator Mitchell found that the concern for the health and safety of all the employees prevails over the interests of the non-compliant employees. He noted, “The interests of employees in their bodily integrity and privacy in these particular circumstances do not outweigh the concern for the health and safety of all the employees, or the need to protect the Employer’s essential operations.”[9]

Conclusion

Ultimately, Arbitrator Mitchell found that the Policy was reasonable with some caveats. Specifically, Arbitrator Mitchell found the Policy to be unreasonable as it applied to unvaccinated employees who have been working exclusively from home and for whom there is no expectation of a return to the office until April at the earliest, or to employees who work exclusively outside or who can be accommodated such that they can work exclusively outside. The Policy applied to those who even partially worked inside.

Arbitrator Mitchell did not rule on testing as non-vaccinated employees were to be on leave in any event. While the Employer’s failure to consult the Union about the Policy was not at issue, he wrote that “no doubt it would have been far preferable” had consultation with the Union or the Joint Health and Safety Committee occurred.[10]

[1] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA).

[2] Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

[3] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA), at para. 4.

[4] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA), at para 4.

[5] Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25(h).

[6] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA), at para. 6, citing Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467, at para. 78.

[7] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA), at para. 92.

[8] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA), at para. 92.

[9] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA), at para. 100.

[10] Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA), at para. 12.

Authored by Paniz Khosroshahy

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