While individuals have right to decide, policy doesn't actually mandate shot
An Ontario arbitrator has dismissed a school board union’s claim that the board’s vaccination policy violated the Canadian Charter of Rights and Freedoms – a decision that makes the distinction between a mandated action and living with the economic consequences of a free choice, says Sharaf Sultan, an employment lawyer and principal of Sultan Lawyers in Toronto.
“When you're looking at charter challenges, you need to look at the reasonableness of the action itself and the idea, basically, is that the restriction itself is actually reasonable on balance,” says Sultan. “The decision in part basically confirmed that while section 7 [of the charter] protects an individual's right to decide, the [vaccination] policy doesn't actually mandate vaccination.”
New policy takes effect
In August 2021, the Ontario government announced a requirement for all employees at publicly funded school boards to disclose their vaccination status. Around the same time, the City of Toronto announced a mandatory vaccination policy for its employees and the city’s medical officer of health recommended local employees do the same. As a result, the Toronto District School Board (TDSB) implemented the vaccination disclosure requirement followed by a vaccination policy on Sept. 14. The policy came after consultation with the union and other stakeholders.
The TDSB’s policy required all employees with direct contact with staff or students to be fully vaccinated against COVID-19, which meant two doses. Employees had to provide proof of vaccination or a valid exemption on medical or human rights grounds, by Nov. 1. Any employee who failed to comply by the deadline would be placed on a non-disciplinary unpaid leave of absence.
Students were not subject to the policy as the TDSB had no statutory authority to impose vaccination on them.
Read more: Four City of Toronto workers unsuccessfully tried to frame a vaccination policy as an occupational health and safety issue.
The union asked the TDSB to reconsider the mandatory vaccination requirement, suggesting that employees who weren’t vaccinated could be accommodated through frequent testing and other measures. The TDSB refused, pointing out that data showed that being fully vaccinated significantly reduced the risks of serious symptoms and the spread of COVID-19 – which was important in schools because at that point, children under 12 were ineligible to be vaccinated and had no protection from infection.
Temporary exemptions granted
The TDSB eventually granted temporary exemptions to about 300 unvaccinated employees because of staffing issues.
The TDSB implemented a decision matrix to determine if an unvaccinated employee could work with testing or had to go on leave. The matrix considered multiple factors – if the employee could be easily replaced, whether the employee could work alternative duties, whether the need for that employee outweighed the safety risks, and whether the employee could work with alternate safety measures in place such as testing.
Sultan says that that fact that the policy was clearly thought out, with consultations before implementation followed by the decision matrix to consider individual circumstances, helped the TDSB’s argument that the policy was reasonable.
“I think anything where there is common ground and understanding as to the reasonableness of the measure, that also there was thought put into the policy that it wasn't just arbitrarily reached, will help,” he says.
The union challenged the mandatory vaccination requirement as infringing section 7 of the Canadian Charter of Rights and Freedoms – which states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” It also claimed that the vaccine attestation requirement and the placement of some, but not all, unvaccinated employees on unpaid leave was unreasonable.
In addition, it argued that being fully vaccinated was not effective against the Omicron variant of COVID-19 that arrived in December, so the lack of a requirement for a booster made the policy ineffective in protecting nonvaccinated staff and students.
No protection from economic consequences
The arbitrator noted that the charter protects an individual’s right to decide whether or not to be vaccinated, but it does not “insulate a person who has chosen not to be vaccinated from the economic consequences of that decision.” The arbitrator found that the TDSB’s policy didn’t violate anyone’s life, liberty, or security and didn’t mandate vaccination without consent. In addition, the TDSB considered individual circumstances where human rights or medical concerns were raised.
The arbitrator also noted that there was no disagreement that “vaccination is the best way of keeping people and workplaces safe from infection.” It was also well-established that rapid antigen tests were limited in their effectiveness. While the union’s challenge included an argument that testing could be a substitute for vaccination, the arbitrator found no evidence that rapid tests reduced transmission of COVID-19 in workplaces or other settings.
The evidence indicated that vaccination was a safe and more effective way to reduce the risk of becoming infected, said the arbitrator, adding that this was particularly important for unvaccinated students.
While the evidence was that rapid antigen tests weren’t as reliable as vaccination, Sultan says that it didn’t really matter – since the TDSB’s policy didn’t violate the charter, it didn’t need to provide alternative measures to protect staff and students from the spread of COVID-19.
“The TDSB didn't have to show that they had a reasonable alternative because the original requirement was reasonable,” says Sultan. “You don’t need to turn to step two, which is whether or not on its balance it’s reasonable to allow for a [charter] violation.”
“But I don't think that would have changed the analysis, because the emphasis was on protecting the vulnerable population and there have definitely been question marks about how reliable [antigen tests] are.”
Read more: Workplace vaccination policies were put to the test in 2021 with mixed results.
The arbitrator found that the consequences of non-compliance with the policy were “purely economic and they are proportionate to the objective of preventing the transmission of COVID-19 to employees and students in TDSB schools.” As a result, the policy did not breach the charter, the arbitrator said.
In addition, the TDSB had obligations under the Occupational Health and Safety Act to take every precaution reasonable to protect workers. Given the evidence that vaccination was most effective in ensuring safety from COVID-19 for worker and vulnerable students, the policy was reasonable, said the arbitrator in dismissing the grievance.
When it comes to the reasonability of restrictions, it's a matter of balancing interests, says Sultan.
“I think people were concerned initially that ‘We can't do this, we can't put a policy like this in place,’” he says. “The point is that it’s possible to place restrictions in the workplace and it's possible for an employer to have flexibility – it's just a matter of demonstrating to the decision-maker that there's been thought put into it, and then doing an analysis and not assuming that there are violations.”
See Toronto District School Board and CUPE, Local 4400 (PR734 COVID-19 Vaccine Procedure), Re, 2022 CarswellOnt 3468.