As the pandemic reaches a critical infliction point, brought upon by the vaccine mandates being implemented across the globe, legal challenges have manifested that have resorted in arbitrators largely erring on the side of caution in an attempt to minimize health risks to employees and the public.
In Canada, legal challenges of employer vaccine mandates are being tossed out as arbitrators side with the need for health and safety. Most of the cases which have rendered rulings so far involve employee grievances in unionized workplace, as a result of the expeditated decision-making process in comparison with the courts.
A recent arbitration decision between Hydro One Inc. and the Power Workers’ Union dismissed the grievances of multiple workers placed on unpaid leave for failing to comply with the Ontario utility’s COVID-19 vaccination policy. The policy in question required unvaccinated workers – and those who declined to reveal their vaccination status – to conduct rapid COVID tests on a regular basis.
In his decision, chief arbitrator John Stout, stated:
“Prohibiting employees from attending work if they do not provide proof of vaccination or a negative COVID-19 [rapid antigen test] is fair and reasonable in the circumstance of this pandemic… Hydro One is complying with their obligations under the Occupational Health and Safety Act to take reasonable precautions to protect the health and safety of their employees and the public that they serve.”
The union had held that the workers should have been able to work from home. However, the arbitrator dismissed this position on the basis that most of the impacted employees could not perform their work remotely. Stout went on to emphasize that a reasonable alternative to the vaccines was provided vis-à-vis the testing that had already been provided.
In another dispute, a grievance filed by Teamsters Local 847 against Maple Leaf Sports and Entertainment (“MLSE”) was dismissed by the arbitrator. In that dispute, the grievance was filed on behalf of a worker, who’s job consists of converting Scotiabank Arena in Toronto between events (i.e., from sports to concerts). The union alleged that the company had violated the collective agreement after it placed the worker on unpaid leave due to an undisclosed vaccination status.
The arbitrator presiding over the dispute, Norm Jesin, said the “weight of authority” supports vaccine mandates in the workplace, in an effort to reduce the spread of COVID-19, particularly in occupations that result in employees working in close proximity. Jesin went on to state that it is the “duty of employers to take any necessary measures for the protection of workers” as set out in the Occupational Health and Safety Act.
Once again, Jesin emphasized the reasonableness of the vaccine mandate, stating:
“The employer has established that being vaccinated for COVID-19 is a necessary qualification for the performance of work within the bargaining unit, such a determination is reasonable given the pandemic that presently exists.
Finally, in yet another dispute, UFCW Canada Local 175 argued that Bunge Canada’s vaccine policy is an “unreasonable exercise of management rights” due to the requirement that employees must disclose their personal health information. Arbitrator Robert J. Herman dismissed the grievance on the basis that the vaccine policy the food processing company had in place was a “reasonable exercise of management’s right to issue workplace policies”.
These rulings highlight the delicate balance in place between protecting public health and safeguarding the rights and freedoms of Canadians. As the pandemic continues on, we await the next swing of the pendulum.