An arbitration decision released January 12, 2022 has joined the persistently growing list of decisions upholding COVID-19 vaccination mandates, as well as the discipline contemplated for those employees who fail to meet the mandate’s requirements.
In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, Arbitrator Norm Jesin was tasked with deciding whether or not the MLSE’s vaccine mandate violated the existing collective agreement, employment contracts or any relevant legislation by requiring employees to disclose vaccination status, and for placing non-conforming employees on unpaid leaves of absence.
The employer, in this case, was MLSE, the operator of a number of professional sports teams such as the Toronto Maple Leafs and Toronto Raptors. The employee in question worked at the Scotiabank Arena. The employee’s job involved converting the arena from one type of event to another (i.e., from a concert venue to a hockey rink, etc.). He had been working there for ten years. In the course of his employment, he would be placed in close proximity to up to 100 people at a time, including sometimes professional athletes.
The Vaccine Policy
In compliance with provincial government requirements, the employer implemented a vaccine policy requiring its employees to be fully vaccinated by October 31, 2021. The policy provided that all information related to an employee’s vaccine status, or any underlying medical information, would be kept confidential and remain anonymous. Employees would disclose their vaccine status through a secure third-party portal. The employer made all employees aware that if they were to breach the policy or fail to be in compliance by the deadline, they would be placed on an indefinite unpaid leave of absence and may even be subject to termination.
The employee refused to disclose his vaccinated status and therefore was not in compliance with the above policy. He was thereafter placed on an unpaid leave of absence. In his opinion, the employer was violating his seniority rights by not allowing him to work in the circumstances. Furthermore, his Union took the position that his vaccine status was private medical health information that could not be subject to disclosure.
The employer, on the other hand, argued that the employee’s right to work is subject to an employee’s ability to perform the work. It was their right under the collective agreement to establish a vaccination mandate. They had the right to implement this policy. In following the policy, any employee who does not disclose their vaccine status is not able to establish their ability to perform the work. Furthermore, the employer argued that privacy rights are not absolute and must be balanced against other interests, such as the employer’s obligation to protect its employees.
Arbitrator Jesin’s Decision
Arbitrator Jesin disagreed with the Union’s argument that the employee’s seniority rights were being denied. Instead, he held that the employer had established that being vaccinated was a necessary qualification for the performance of work, and that such a determination was “reasonable given the pandemic that presently exists.” Additionally, having such a vaccine mandate was a reasonable and appropriate means for the employer to fulfil its obligations under the Occupational Health and Safety Act. The employer was protecting its workers and had taken the appropriate steps necessary to ensure the confidentiality of any disclosed information.
Ultimately, Arbitrator Jesin determined that the employer had not violated the collective agreement. They had not violated any relevant legislation. They were permitted to require the grievor to disclose his vaccination status, and they were permitted to place him on an unpaid leave of absence for his failure to comply. As such, his grievance was dismissed.
Arbitrator Jesin noted:
“It is clear that the weight of authority supports the imposition of vaccine mandates in the workplace to reduce the spread of Covid 19.”
His observation is sound. Recent jurisprudence on the enforceability of vaccine mandates, at least in the unionized work environment, appears to favour the implementation and application of such mandates, citing, in particular, the vital need to protect workers. When, or if, an arbitrator, court or tribunal eventually does break away from this jurisprudential trend, it will be interesting to see on what basis they justify their departure.