Stikeman lawyer notes that specific circumstances will still be part of judging reasonableness
An Ontario Labour Board decision that upheld as reasonable a company policy saying that to be “fully vaccinated” against COVID-19 means receiving a third “booster” shot provides employers with important guidance. However, Stikeman Elliott LLP lawyer Kris Noonan notes that individual firms will have to look at their circumstances to determine a reasonable vaccination policy for their workplace.
In Power Workers’ Union v Elexicon Energy Inc., arbitrator Michael Mitchell found that the employer’s compulsory vaccination policy aligned with the employer’s duty to protect the health and safety of its workforce. As an essential service provider, it was also reasonable to ensure it had enough employees to provide needed services.
He wrote: “In my view, there is nothing fundamentally undemocratic about an employer making health and safety rules for its workplace, especially in the context of a dangerous pandemic.”
He also noted the “two-dose vaccinations cannot be relied upon to the same degree to ward off Omicron as they were to protect against Delta and a third booster is generally required.”
Noonan says the decision is important because it supports mandatory booster shoots in situations where there is a “significant operational risk” to the workforce available. This is especially important for situations such as the recent wave of the highly transmissible Omicron variant when it was determined that booster shots provided an important defence in serious illness.
The decision also recognizes that an arbitrator’s assessment of what constitutes a “reasonable” mandatory vaccination policy during the COVID-19 pandemic “must be contextual and dynamic.”
“So, in this particular set of circumstances, the arbitrator ruled that it was reasonable, and it was reasonable to require booster shots to be considered fully vaccinated,” Noonan says. “This might not be the case in other workplace situations.”
Elexicon Energy Inc. is an electricity distribution company owned by the City of Pickering, the Town of Ajax, the Town of Whitby, the City of Belleville and the Municipality of Clarington. It has 273 employees, some who work in offices and some in the field.
It introduced several protective measures to reduce transmission of COVID-19 at its workplace, including masking; physical distancing; hygiene, cleaning and disinfection; testing; and work from home arrangements.
Despite these measures, the risk of COVID-19 transmission at Elexicon’s workplace remained high. The firm’s employees worked in close contact with each other for significant periods, and the nature of its operations required its employees to intermingle between cohorts and members of the public.
As a result, on Oct. 28, 2021, Elexicon introduced a mandatory vaccination policy that required its employees to have “full vaccination status” by Jan. 7, 2022. The defined “full vaccination status” is two doses, plus any additional vaccinations recommended by governmental or healthcare authorities. Significantly, this was before the Omicron variant caused a considerable increase in cases of COVID-19.
“I think it was just foresight on behalf of Elexicon to include that ‘any additional’ vaccination wording, not all employers have gone that far,” Noonan says.
As the Omicron variant became more problematic, Elexicon relied on the Ontario government’s recommendation regarding booster shots to make them compulsory for employees.
Employees who did not comply with the policy would be restricted from entering Elexicon’s property and placed on an unpaid leave of absence. The policy also said an employee could be subject to disciplinary action, including termination of employment.
The Power Workers Union representing the employees filed a grievance, arguing the policy “was fundamentally undemocratic, unreasonable,” and in violation of the employees’ right to preserve their bodily integrity. The union supported voluntary vaccination and compulsory testing. However, it did not support unilateral mandatory vaccination policies, or the requirement that unvaccinated employees or those unwilling to disclose their status, pay the cost of rapid antigen testing and contribute to the cost of PCR testing.
However, Mitchell ruled the policy was enforceable and dismissed the Union’s grievance, basing his decision on two grounds. The first was in connection with Elexicon’s obligation under occupational health and safety legislation to take every precaution reasonable in the circumstances to keep its workers safe. He also concluded it was unnecessary, in the circumstances, to determine the issue of the responsibility of unvaccinated employees to pay for rapid antigen testing and to pay $25 towards the cost of PCR testing.
Noonan says the evidence before the arbitrator supported the position that vaccinated employees were at a lower risk of becoming infected or transmitting the virus to others. A third or “booster” dose further decreased the incidence of severe disease and transmission in the workplace.
The second ground was more specific to Elexicon’s business. Mitchell found Elexicon provided a critical essential service and that the protective measures established by Elexicon, including compulsory vaccinations, were justified to enhance the availability of its workforce and the continuity of its essential service during the pandemic.
Arbitrator Mitchell also noted that the absence of a vaccination mandate would lead to more frequent and longer absences and would amount to an unreasonable cost for Elexicon to bear.
While the policy was upheld, the arbitrated pointed to some important caveats, including:
- Working remotely. The policy was not reasonable for employees who Elexicon required to work from home.
- Working outside. The Policy was not reasonable for those who worked entirely outside.
Noonan says this decision goes a step further than previous arbitration decisions by upholding a mandatory vaccination policy that required employees to receive a third “booster” shot against COVID-19. “This decision’s reliance on the general and universal positive obligation on employers to take reasonable steps to protect its workers has a wide range of applicability to many workforces.”
He also says Mitchell looked to the dramatic changes to the COVID-19 pandemic with the arrival of the Omicron variant in assessing the reasonableness of a policy. While arbitrators typically determine reasonableness based on evidence that exists when a policy is introduced, Mitchell factored in the rise of Omicron between when the policy was grieved (Nov. 1) and when the matter was heard (Jan. 14).
“Significant emphasis was placed on the fact that the Omicron variant was much more transmissible than previous strains of the COVID-19 virus, and its role on the arbitrator’s decision and the evidence before him cannot be understated.”
Noonan says he expects that future decisions on the enforceability of COVID-19 policies may be influenced by the current state of the COVID-19 virus at the time of adjudication, not just at the time of policy introduction.
“Accordingly, even policies introduced at the height of the pandemic may be at a greater risk of being found to be unreasonable as COVID-19 cases trend downwards and government support for mandatory vaccination programs wane.”
Noonan adds: “With the government now lifting restrictions, and more of a move away from the mandates that were in place, the reasonableness of a policy such as this may also start to wane.”