The limits as to how and whether employers may impose mandatory vaccination policies are being clarified by arbitrators and courts on an ongoing basis. A recent Ontario decision, Electrical Safety Authority v Power Workers Union (Stout) 2021 (ON LA) ("ESA v PWU"), provides insight to how decision makers may approach the question of the legality and reasonableness of certain mandatory vaccination policies. The decision highlights the context-specific nature of these policies, and the need to take a measured approach to addressing the risk of COVID-19 in the workplace.
Summary
The employer, the Electrical Safety Authority, implemented a mandatory vaccination policy. That policy required that employees be vaccinated by a particular date, disclose their vaccination status, and provided that discipline could result from a policy violation. Notably, the policy did not include a testing option for individuals who did not vaccinate. That was a feature of a prior policy that had been replaced.
The union grieved several elements of this policy. It argued that the policy was an unreasonable exercise of management rights, and that it violated employee privacy rights.
The arbitrator applied the well-recognized test for assessing the reasonableness of employer policies as outlined in Re Lumber and & Sawmill Workers' Union, Local 2531, and KVP Co. (1965) (the "KVP test"). He endorsed a contextual, nuanced application of the KVP test, where determinations as to whether a mandatory vaccination policy is reasonable include balancing employees' individual rights an with employer's interests in maintaining a safe work environment, as well as and broader policy concerns.
The decision addresses some of the situations where employers have chosen to implement mandatory vaccination policies and highlights the enforceability of those policies in those circumstances. For example, the arbitrator wrote that in workplaces with vulnerable populations, such as health or long-term care facilities, the employer may be entitled to implement mandatory vaccination policies applicable to all employees because this may be necessary to protect the vulnerable population they serve. In these contexts, it may be reasonable to discipline or discharge an employee for refusing to be vaccinated, provided the employer has communicated clearly to employees that these may be consequences.
In contrast, the arbitrator notes that workplaces without vulnerable populations or those comprised of employees able to work remotely in settings where there is otherwise no "significant risk related to an outbreak, infections, or significant interference with the employer's operations" should approach mandatory vaccination policies with more caution. It may be reasonable for such workplaces to refrain from a mandatory vaccination policy and instead opt for managing the risks through a vaccination disclosure and testing policy. The arbitrator noted that as circumstances change even in the same workplace, that may lead to a different conclusion in terms of what policy provisions are reasonable.
The arbitrator held that based on the evidence put forward by the employer, it had failed to establish that a mandatory vaccination policy was a reasonable exercise of management rights. He rejected the employer's plea for a mandatory vaccination policy in part because the employer did not provide evidence that a testing policy, together with voluntary employee vaccination, would be inadequate for protecting their employees. The decision noted that the ESA has had no outbreaks of COVID-19 throughout the pandemic, and there have been only two instances where an employee may have contracted COVID-19 from the workplace. In rejecting the mandatory vaccination policy, the arbitrator also note that the employer failed to demonstrate that lack of a mandatory vaccination policy would cause significant interruptions to the employer's business, rather than simply pose an inconvenience.
While the employer raised the concern that some employees may need to access to third-party locations requiring proof of vaccination, the arbitrator found that such work could be delegated to vaccinated employees, akin to shuffling employees to provide coverage for typical absences, such as sick leave.
Finally, the arbitrator addressed the legality of requiring employees to disclose their vaccination status. He noted that the employer may collect information about employees' vaccination status only with an employee's consent and if their medical information is adequately protected.
While this case arises in the context of a unionized workplace, where the KVP test is widely accepted, it will potentially have impact in non-unionized workplaces as well. That arises because part of the test of whether an employee has been "constructively dismissed" includes assessment of whether a "reasonable person" in the same situation as the employee would feel essential terms of their employment contract had been substantially changed. That common thread of reasonableness provides a potential link which could result in a mandatory vaccination policy resulting in termination or loss of pay being found to be a constructive dismissal, if the specific context in that workplace is not such as to justify that policy for the specific employees to whom it is being applied.
Conclusion
There is no singular approach to vaccination policies applicable to all workplaces. Assessing whether a mandatory vaccination policy is appropriate in a particular workplace requires a contextual approach, where an employer's interests are balanced against employees' individual rights, and protecting vulnerable populations is prioritized. It may be that employees working in different roles - public forward versus alone and independently - raise different concerns and exceptions may be appropriate. Any vaccination policies should be reviewed on an ongoing basis to ensure they continue to address public health and safety concerns, including compliance with the most recent legal decisions and legislation and consideration of whether the circumstances impacting the workplace have changed.
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