The issue of the reasonableness of mandatory vaccination policies was considered as recently as November 11, 2021 in an arbitration decision between the Electrical Safety Authority (“ESA”) and the Power Workers’ Union, a decision outside of a medical setting.

According to the facts underlying the dispute, the ESA implemented a policy on October 5, 2021, which required employees to provide proof of vaccination by no later than October 13, 2021.

Staff that were not able to demonstrate full vaccination by no later than a set date and undertake testing until such time as they are fully vaccinated. This newfound policy, which in due course mandated vaccinations for the entire workplace with only medical and Human Rights Code related exemptions, was an intensification of the ESA’s previous policy requiring either vaccination or regular testing of employees.  Employees not vaccinated in accordance with this new policy would be subject to discipline and possible discharge from their employment.  Alternatively, the ESA, at its discretion, could place employees on an unpaid leave of absence.

The decision itself came about as a result of a grievance brought by the Power Workers’ Union, which took the position that such policy was unreasonable and represented a significant overreach of management rights.  The Union alleged that the policy, as implemented, was a violation of the employees’ privacy rights and bodily integrity.

Ultimately, Arbitrator Stout determined that the new policy as written was unreasonable to the extent that employees may be discharged or disciplined for failing to be fully vaccinated, where there is a reasonable alternative and it had not been a requirement of being hired.  He likewise determined that it was unreasonable to place employees on an administrative leave without pay if they do not get fully vaccinated.  Applying the KVP test for the unilateral imposition of policies and rules in a unionized workplace, Arbitrator Stout found that an employee’s right to privacy, personal autonomy, and bodily integrity are

fundamental to a just and democratic society but are not absolute. Rather, these individual rights may face circumstances where the rights of the collective outweigh the rights of the individual.  However, is assessing this newer policy in context, where employees perform some work remotely and there is no specific problem or risks of outbreak, infections, or an interference with the employer’s regular operations, a policy that is less intrusive is (at least presently) adequate.  This was especially so because the ESA did not demonstrate any difficulties in protecting their workplace using a combination of vaccinations and testing.

The decision also addressed issues related to privacy and the disclosure of medical information to third parties.  Specifically, Arbitrator Stout found that employees’ medical information must be kept safe, secure, and protected from disclosure, and that it is fair and reasonable for employees to have the option of granting the employer the right to disclose their status to third-parties for the sole purpose of accessing worksites; however, this consent ought not be required of employees, and employees ought to be permitted to grant consent on a case by case basis. Arbitrator Stout referred the policy to the ESA’s Joint Health and Safety Committee to consider this and related issues.

This article is brought to you by Zach Courtemanche. Weaver Simmons partner practicing Labour and Employment Law.

Notwithstanding the above, it bears note that the issue is not over.  Arbitrator Stout expressly noted that this decision ought not be viewed as a win by those who are unvaccinated.  It was Arbitrator Stout’s view that those refusing to be vaccinated were not just endangering their health but may be placing their employment in jeopardy in the long run, and that the choice of individual employees to not be vaccinated may result in consequences at a later time and in different circumstances.

This decision illustrates an early viewpoint on mandatory vaccination policies outside of the healthcare and long-term care sectors.  Employers outside of those sectors should therefore be mindful that mandatory vaccination policies, without alternatives, may not survive scrutiny by a court or arbitration.

Our Labour and Employment Law Group would be pleased to discuss the implications of this decision on your covid vaccination policies and assist you in drafting or revising such policies.  While the above commentary does not constitute legal advice, we would be pleased to meet with you to consider your specific circumstances.