We have encountered a great deal of arbitration decisions relating to COVID-19 vaccination in the early days of 2022. Most of these decisions, to the dismay of non-vaccinated Canadians, uphold mandatory vaccination workplace policies and the associated discipline for failing to comply – even to the point of outright termination of employment without cause. This is the case even where the policy provides for no alternative to vaccination.
Given the above, it is not so surprising that Arbitrator Stout, in a recent decision, upheld a mandatory vaccination workplace policy that did provide a reasonable alternative.
Hydro One’s COVID-19 Vaccination Policy (the “Policy)”
In this case, the employer Hydro One implemented a policy requiring all their employees to provide proof of vaccination status or confirmation of a medical exemption, or alternatively that the employee declined to disclose their vaccination status. Employees who either declined to disclose their vaccination status or remained unvaccinated pursuant to a medical exemption were provided an alternative: they were to undergo regular COVID-19 rapid antigen testing (RAT) prior to coming in for work. This is a much more accommodating policy than those that enabled employers to terminate unvaccinated employees without first offering them an alternative.
Nevertheless, a number of Hydro One employees refused to provide proof of vaccination and also refused to provide a negative RAT. They were consequently in violation of the Policy and placed on an unpaid leave of absence.
In addressing the situation, Arbitrator Stout began by commenting on the legitimacy of the Policy itself:
“I begin by noting that the Policy is reasonable, and it is necessary to address the on-going health and safety issues arising from the current COVID-19 global pandemic.”
This is consistent with earlier arbitration decisions regarding COVID-19 vaccinations, which all seem to emphasize the vital importance and necessity of being vaccinated in light of the global pandemic.
Ultimately, Arbitrator Stout held that it was reasonable for Hydro One to suspend workers who refused to comply with the Policy, either by not being vaccinated or by refusing to comply with regular testing. He wrote:
“I am also of the view that prohibiting employees from attending work if they do not provide proof of vaccination or a negative COVID-19 RAT is fair and reasonable in the circumstances of this pandemic. Hydro One is complying with their obligations under the Occupational Health & Safety Act, to take reasonable precautions to protect the health and safety of their employees and the public that they serve. The Policy is a reasonable compromise that respects employee rights and balances the various important interests.”
Perhaps the Policy “respects employee rights” by providing them with the reasonable alternative to vaccination. As it relates to failure to comply with the reasonable alternative, the RAT, Arbitrator Stout wrote:
“In terms of accommodating the Grievors with remote work, I agree with Hydro One that such an accommodation is not necessary or required in these circumstances. Most of the Grievors could not perform their work remotely in any event. It is also not necessary to provide remote work where a reasonable alternative has already been provided to those employees who refuse to disclose their vaccinated status (i.e., RAT). If employees refuse the reasonable alternative, then that is their free choice but Hydro One has no further obligation to accommodate such individuals.”
It would appear that where an employer has implemented a COVID-19 Policy and has provided within a reasonable alternative to vaccination, considering the circumstances of their workplace (i.e., is remote work necessary?), then the employer has already met their obligations and the failure of an employee to accept the reasonable alternative is a decision of the employee not to be in compliance with the policy. The employer owes them no further accommodations.