Since we last wrote on the topic of COVID-19 vaccination policies, another vaccination policy was upheld at arbitration, this time, requiring employees to receive a third "booster" shot against COVID-19. In Power Workers' Union v Elexicon Energy Inc.,1 an Ontario arbitrator found that the employer's compulsory vaccination policy was reasonable as it aligned with the employer's duty to protect the health and safety of its workforce, and, as an essential service provider, was reasonably required to ensure it had enough employees to provide such services. This decision is important for two reasons: (i) the rapid spread of the Omicron variant was a focal point of the decision, notwithstanding the policy was introduced (and grieved) nearly 2 months before it became the dominate strain in Ontario; and (ii) it is arbitral authority that supports mandatory "booster" shots where there is a significant operational risk to the availability of the workforce. The decision also emphasizes that an arbitrator's assessment of what constitutes a "reasonable" mandatory vaccination policy during the COVID-19 pandemic must be contextual and dynamic.
In response to the COVID-19 pandemic, Elexicon Energy Inc. ("Elexicon"), a municipally owned electricity distribution company in the province of Ontario, introduced a number of protective measures to reduce the transmission of COVID-19 at its workplace, including: (i) masking; (ii) physical distancing; (iii) hygiene, cleaning and disinfection; (iv) testing; (v) and work from home arrangements. Notwithstanding the introduction of these measures, the risk of COVID-19 transmission at Elexicon's workplace remained high, as Elexicon's employees worked in close contact with each other for significant periods of time, and the nature of its operations required its employees to intermingle between cohorts and members of the public.
As such, on October 28, 2021, Elexicon introduced a mandatory vaccination policy (the "Policy") that required its employees to have "full vaccination status" by January 7, 2022. The Policy defined "full vaccination status" as two doses and any additional vaccinations recommended by governmental and/or healthcare authorities. During the rise of the Omicron variant and following the Ontario Government's recommendation that all Ontarians aged 18 and over receive a "booster" shot, Elexicon relied on its Policy and made third shots compulsory. 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 prescribed that an employee could be subject to disciplinary action up to and including termination of employment.
The Power Workers Union (the "Union") filed a grievance, alleging that the Policy was fundamentally undemocratic, unreasonable, and in violation of the employees' right to preserve their bodily integrity.
The Arbitrator held that the Policy was enforceable and dismissed the Union's grievance. The Arbitrator based his decision on two grounds. The first was in connection with Elexicon's obligation under applicable occupational health and safety legislation to take every precaution reasonable in the circumstances to keep its workers safe. 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, and that a third or "booster" dose further decreased the incidences of severe disease and transmission in the workplace.
The second ground was more specific to Elexicon's business. The Arbitrator found that 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. The Arbitrator specifically 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, it remained subject to several caveats, including:
- Working remotely. The Policy was not reasonable for employees who, pursuant to Elexicon's direction, were required to work from home.
- Working outside. The Policy was not reasonable for those who worked entirely
Significance of the Decision
This decision goes a step further than previous arbitral 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.
While arbitrators, in assessing the reasonableness of a policy, have historically been limited to evidence existing at the time a policy is introduced (or on the date discipline is issued pursuant to a policy), the Arbitrator in this decision found that the dramatic changes to the COVID-19 pandemic that occurred in the months following the Policy's introduction had significant relevance. Although there had been no reported Omicron cases in Ontario at the time the Policy was introduced (October 28, 2021) or when the Policy was grieved (November 1, 2021), by the time the arbitration was heard (January 14, 2022), Ontario was near the peak of the Omicron wave. 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.
We expect this trend to continue and believe 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 (and 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.
We will continue to monitor developments respecting mandatory vaccination in the workplace and provide any pertinent updates as they become available. Employers with specific questions regarding their approach on these matters can seek guidance from experienced legal counsel at Stikeman Elliott LLP.
1 Power Workers' Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA).
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