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Bulletin | The HR Space | Covid-19

Vaccinate or Test COVID-19 Policy: Arbitrator Hints Termination For Cause Could Be Upheld

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Labour, Employment & Humans Rights Law Bulletin | HR Space

Almost a year ago, we wrote an article about whether a mandatory COVID-19 vaccination policy could be enforced at arbitration. The answer was the classic (and frustrating) it depends. When we wrote that article, the vaccines had just been approved so no cases had yet been decided. Now, we have the benefit of a series of arbitration awards on COVID-19 policies. In one of the most recent awards[1], an arbitrator upheld many of the key elements of an employer’s “vaccinate or test” COVID-19 policy, and hinted the failure of unvaccinated individuals to test might be cause for termination.

What Happened?

The employer implemented a “vaccinate or test” policy to mitigate the risk of COVID-19 in the workplace. The policy applied to all staff, including unionized employees, and took effect September 23, 2021. The policy, among other things, provided that:

  • Employees must either be vaccinated against COVID-19 or if unvaccinated undergo COVID-19 testing once per week during an initial orientation period, followed by twice per week testing with 48 hours between tests;
  • Unvaccinated employees were required to pay $25 per week to cover the cost of testing, or else procure their own test kits;
  • Time spent testing and uploading results was unpaid;
  • Failure to test would result in an unvaccinated employee being placed on an unpaid leave of absence. If the employee did not change their mind and agree to participate after a period of six (6) weeks, employment would be terminated for cause; and
  • Unvaccinated employees could not access the on-site gym.

The union filed a grievance about requiring employees to pay for testing, placing employees who refused to test on leave, and a few other issues. The obligation to test during the pandemic was not challenged by the union.

What Did the Arbitrator Decide?

The arbitrator decided that:

  • Testing the unvaccinated was reasonable: Testing unvaccinated employees was reasonable in the current circumstances of the pandemic and in light of the employer’s general duty to take every precaution reasonable in the circumstances for the protection of a worker.
  • The employer should pay testing costs: It was not reasonable to require employees to pay for the cost of their own testing. It was the employer that required testing and verification of results so the cost should be paid by the employer.
  • Employees are not entitled to be paid for testing time at home: There was no requirement to pay employees for time spent testing at home before work. It made sense to test at home so an employee who tested positive could isolate before entering the workplace. The time spent was minimal (about 15 minutes) and less than the time it would take to test in the workplace (about 30 to 45 minutes). Plus, the arbitrator said paying for time administering the test outside of work might actually disincentivize getting vaccinated.
  • Refusing employees could be suspended without pay: It was reasonable to suspend, without pay, unvaccinated employees who refused to test. It was not a breach of the disciplinary process in the collective agreement. Rather, those employees were refusing to take the “necessary and reasonable step” of testing to demonstrate they are fit for work and not a risk to their coworkers. Unlike with discipline, an employee could decide when to come back to work by complying with the policy.
  • Prohibiting gym access by unvaccinated employees was reasonable: Emphasizing the global pandemic, the high-transmission risk in gyms, and the existing public health rules about entry to gyms, the arbitrator decided that the employer’s health and safety obligations trumped the mid-term agreement between the parties about gym access.
  • Termination for cause might be upheld: This was not a termination case, but the arbitrator expressed his preliminary (and helpful) view that a termination for cause for failing to test might be upheld at arbitration. He wrote:

    “I think it is important for them to understand that, in my preliminary view, in the context presented by this global pandemic, when lives of co-workers are at risk, unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they present to their co-workers. The Company has made it clear that termination of employment at the end of the 6-week period will typically occur. It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, employees who refuse testing will likely will have made a decision to end their career with this Company.”

Key Takeaway for Employers

This is the latest and positive development in a series of recent arbitration decisions about COVID-19 vaccination polices.

In UFCW Canada Local 333 and Paragon Protection Ltd., an arbitrator decided the employer’s COVID-19 vaccination policy was reasonable, enforceable and compliant with Ontario human rights and occupational health and safety laws. Notably, the collective agreement had a provision that specified if an employee was assigned to a site requiring vaccination, the employee must agree to receive it, subject to certain terms and conditions.

A different arbitrator in Electrical Safety Authority and Power Workers Union decided that an employer’s mandatory vaccination policy was unreasonable because it was a disproportionate response in the particular circumstances. The particular circumstances include no workplace outbreaks, the previous voluntary policy worked fine, and no serious operational issues were posed by the unvaccinated employees.

These decisions might on first glance seem to be inconsistent, but they actually illustrate the importance of factual context in these types of cases. What is permissible in one workplace for one group of workers may not be in another. What is not permissible now may be permissible at another time as conditions change. And the key take away should be to get legal advice specific to your workplace and your employees when developing, implementing and enforcing your vaccination policy. We should also keep in mind that we are in the early stages of case law on COVID-19 vaccination policies. We are likely to see more cases from other decisions makers about policies in other workplaces.

If you have any questions about COVID-19 vaccination policies, please contact the authors or your regular Fasken lawyer.

[1] Ontario Power Generation and The Power Workers Union, Re OPG-P-185, unreported, November 12, 2021.

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