By Ron Minken, Tanya (Tejpreet) Sambi and James Moon
The Occupational Health & Safety Act does not require all businesses to implement a mandatory COVID-19 vaccination policy. Employers who have done so based on their personal views, or on a misunderstanding of the law, should immediately assess whether their vaccination policy is required, and if so, whether it is reasonable. In certain cases, having a vaccination policy is all that is required.
Whether vaccination should be mandatory or voluntary should be examined with great care as otherwise employers could be liable to their employees for constructive dismissal and aggravated and punitive damages.
On November 11, 2021, Arbitrator John Stout in Electrical Safety Authority and Power Workers’ Union, held that the employer’s mandatory COVID-19 vaccination policy to be unreasonable in assessing the specific context of the workplace and in assessing the level of workplace dangers and hazards that may arise from COVID-19 transmission or outbreak.
Prior to October 5, 2021, the Electrical Safety Authority (“ESA” or “Employer”) had implemented a voluntary vaccination disclosure and testing policy to address the risk of COVID-19 transmission in the workplace. Most employees (88.4%) were fully vaccinated and had voluntarily disclosed their status to the employer.
The Employer subsequently changed the voluntary COVID-19 vaccination policy to mandatory COVID-19 vaccination policy (“Policy”) on Oct 5, 2021, which required all employees to get vaccinated. Under the new Policy, failure to comply could result in employees being placed on unpaid leaves of absence or having their employment terminated, subject to a valid exemption under the Human Rights Code.
Power Worker’s Union (“the Union”) filed a grievance that the revised COVID-19 vaccination policy was unreasonable, violated the collective agreement, and the employees’ privacy rights and right to bodily integrity.
COVID-19 Vaccination Policy Decision
The Arbitrator noted that when assessing employer rules or policies that is likely to affect employee’s individual rights, arbitrators often apply the KVP test, which sets out the scope of management’s unilateral rule making authority under a collective agreement.
The KVP test requires that a policy or rule satisfy the following conditions:
- it must not be inconsistent with the collective agreement;
- it must not be unreasonable;
- It must be clear and unequivocal;
- it must be brought to the attention of employees affected before the company can act on it;
- the employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge; and
- such rule should have been consistently enforced by the company from the time it was introduced.
When applying the KVP test, the Arbitrator emphasized the importance of taking a ‘nuanced contextual approach,’ especially considering the ever-evolving workplace health and safety conditions involving COVID-19 and the reasonableness of a workplace rule or policy that may infringe upon an individual’s rights.
In particular, the Arbitrator distinguished between high-risk workplace settings such as workplaces where there are vulnerable population such as the children, the elderly or those seeking medical attention, with low-risk workplace settings where employees can work remotely, no specific problems or significant risks related to an outbreak, infections, or significant interference with the employer’s operations.
Although the Arbitrator acknowledged that the management have the right and the legal obligation to protect the health and safety of their employees, any such rule or policy must be reasonably necessary and involve a proportionate response to the real and demonstrated risk or business need.
The Arbitrator noted that in this particular situation, most ESA employees have voluntarily been vaccinated (88.4%) and have already disclosed their status to the ESA. In addition, most of the work by ESA employees have been working remotely and therefore, the ESA is not a high-risk workplace setting. Also, there were no evidence which indicated that there was an increase in the level of workplace dangers or hazards associated with COVID-19 outbreaks or transmissions. Given these reasons, the Arbitrator held that the less intrusive alternative, such as the Employer’s voluntary vaccination disclosure and testing policy employed prior to Oct 5, 2021, is adequate to address the COVID-related issues at the ESA.
Contact Us for Help
If you require legal advice drafting a COVID-19 vaccination policy or opinion on whether your vaccination policy is exceeding your requirements under the Ontario Occupational Health & Safety Act and how to avoid liability, contact us today to speak with one of our lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.
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Please note that this article is for informational purposes only and does not constitute legal advice.
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