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Author:
Charles Binns

Date:
2021.11.18

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THE EMPLOYERS' EDGE

ARBITRATOR UPHOLDS COVID-19 VACCINE POLICY REQUIRING TESTING FOR UNVACCINATED EMPLOYEES

In our latest two blogs, which you can find here and here, we have summarized recent arbitration decisions dealing with the reasonableness of various COVID-19 Vaccination policies. This blog is no different, as yet another decision has been released, which you can find here, this time involving Ontario Power Generation (“OPG”) and the Power Workers’ Union (“PWU”). We will continue to monitor and blog on decisions as they are released to try and clear some of the air for employers attempting to find an appropriate balance within their workplace.

Facts

It is clear from the decision that the parties engaged in a great deal of discussion about OPG’s vaccination policy, and were able to resolve a number of issues on their own. The issues they were unable to resolve were put in front of Arbitrator Murray for determination. Those issues were:

  1. Should the cost of Covid testing for unvaccinated employees be paid for by the employer and should such testing occur during work hours?
  2. What is the proper treatment of employees who refuse to undergo COVID-19 testing?
  3. Should unvaccinated employees or those who choose not to disclose their vaccination status have access to employer gym facilities?

Decision

Issue #1: Who should bear the cost of testing?

OPG’s policy required unvaccinated employees to be tested twice per week. OPG committed to providing tests to employees, who would then be required to record them being administered and submit the recording to an online portal for verification. In addition, employees subject to this procedure were required to consent to a deduction of $25 per week from their pay to account for the costs of administering the testing regime. Employees who did not consent to this procedure also had the option of obtaining verifiable tests on their own and at their own expense.

Arbitrator Murray approved of testing of unvaccinated employees as prima facie reasonable given an employer’s obligation under the Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of workers. He also agreed that it was reasonable to require these tests to be conducted on an employee’s own unpaid time, as it would be far more efficient and incentivize vaccination amongst the employees subject to the procedure. However, Arbitrator Murray agreed with the union that the cost of the testing regime must be borne by the employer, saying only that such an approach struck a balance between the legitimate interests of both parties.

Issue #2: What to do with employees who refuse testing?

As mentioned above, the policy required unvaccinated employees to submit to a regular testing regiment as a condition of reporting to work. The policy also dictated a six week leave of absence for any unvaccinated employee who refused to engage in the testing protocol. Finally, the policy stipulated that any employee continuing to refuse testing after the six week leave would be terminated for cause.

Arbitrator Murray disagreed with the PWU that this portion of the policy violated the collective agreement, which placed limits on OPG’s ability to suspend employees without pay. Employees refusing to engage in a reasonable testing requirement, according to Arbitrator Murray, were refusing “to take the necessary and reasonable step of taking a minimally intrusive test that would demonstrate that they are fit to work and do not present an unnecessary risk to their co-workers during a global pandemic that has cost 29,000 lives in this country and at least 5 million world-wide.” According to Arbitrator Murray it is completely within the control of the employee to decide when to come back to work – all they need to do is agree to participate in a reasonable testing program.

Arbitrator Murray also approved of the termination provision at the end of the six week leave of absence. Relying on the context of the pandemic and the fact that most employees in the workplace willingly complied with the policy, he cautioned the non-compliant, writing, “[i]t is important for those individuals who are fired for choosing not to be tested to understand that they are very likely to find the termination of employment upheld at arbitration.” While this aspect of the decision is helpful for employers, it recognizes the need to engage in individual analysis for employees terminated under similar policies.

Issue #3: Should unvaccinated employees have gym access?

This issue related only to a specific subset of employees who are required to maintain certain fitness levels, and have access to employer gym facilities enshrined in the collective agreement. Despite that, Arbitrator Murray relies on the extremely unusual circumstances of the pandemic to deny the grievance. For him, even though a right to access could be found in the collective agreement, OPG’s obligations in the OHSA trumped the provision. Even though the gym was not public, the same health concerns which motivated the strict regulation of public gyms were held to apply equally to this situation.

Takeaways

The decision is a mixed result for employers. However, it is clear that Arbitrator Murray’s decisions are based heavily on the context of this workplace, so they are not necessarily applicable to all workplaces. As we have stressed in previous blogs, context is everything, and COVID-19 Vaccination policies, like all others, need to be tailored to individual workplaces. As more decision continue to be released, employers should be willing to adjust their current protocols in appropriate circumstances. Staying up to date on recent developments through our blog is a great way to stay ahead of the curve, and the lawyers at CCPartners are here to help with any questions you may have about an existing or impending COVID-19 vaccination policy.

While employers will likely be disappointed in the decision regarding the cost of implementing a testing regime, Arbitrator Murray’s reliance on the context of the global pandemic generally and the health and safety obligations of employers is encouraging. We suspect that there will be many practical solutions reached as employers, unions and employees receive further guidance from Arbitrators, courts and tribunals as time goes on.

If you have questions about the validity of your workplace COVID-19 Vaccine Policy, or you need to consider updating or amending your policy in the circumstances, please reach out to the lawyers for employers at CCPartners for proper guidance and support.                      

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