In early November, 2021, Arbitrator John Stout was tasked with deciding whether or not the mandatory vaccination policy introduced by the Electrical Safety Authority (“ESA”) was reasonable. This is currently a very hot issue, as many employees throughout Ontario are finding their employment jeopardized as a consequence of workplace vaccine mandates.
The ESA has a reputation as a safety organization. Arbitrator Stout acknowledged that, so far, they have done a tremendous job of protecting their employees or depending contractors. Of their over 400 employees, only seven have contracted COVID-19 since the beginning of the pandemic in March 2020. Of those seven, only two were potentially work-related. They have never had a breakout in their workplace. Obviously, this is a good thing, and the ESA should be proud of this accomplishment. However, in enacting their mandatory vaccination mandate, might the ESA have gone too far?
As it turns out, they may have. In his decision, Arbitrator Stout concluded that the ESA’s vaccination policy was indeed unreasonable.
Fluidity of Reasonableness
Reasonableness or unreasonableness does not exist in a vacuum. Arbitrator Stout found the ESA’s “current” policy to be unreasonable to the extent that employees may be disciplined or discharged for failing to get fully vaccinated. Note the use of the word current – this implies that future vaccine mandates may be reasonable. Furthermore, Arbitrator Stout emphasized that what is reasonable may change as the situation continues to unfold in the coming months. Context is extremely important in assessing the reasonableness of a workplace policy, including a vaccination policy.
With that being said, the ESA’s vaccination policy was unreasonable at this current time. It may have been reasonable at a workplace where the risk of spreading COVID-19 was high, but this was not the case with the ESA. They had not yet had any particular trouble with COVID-19. Their previous policy of testing non-vaccinated employees appeared to have been working. Testing, while fallible and not as effective as vaccination, was a reasonable alternative. The ESA could not point to any specific workplace danger or hazard that necessitated the implementation of a mandatory vaccination policy over and above what had already been in place (i.e., testing non-vaccinated employees). Arbitrator Stout commented:
“In my view, disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, is unjust. Employees do not park their individual rights at the door when they accept employment.”
In his opinion, the ESA “jumped to a hasty conclusion” without first considering the validity of their concerns and whether or not those concerns would become reality. Given the above, the ESA policy at this point in time was unreasonable – that is not to say that such a policy would not be reasonable in the future or in a different workplace context.
Hardly a Win for the Anti-Vaccine Movement
While many may view this decision as a win for the anti-vaccine movement, they would be mistaken. Arbitrator Stout spent quite a bit of time in his decision shutting down those who refuse to be vaccinated without possessing a legal exemption under the Ontario Human Rights Code. On the merits of COVID-19 vaccines, Arbitrator Stout commented:
“The science is clear that the COVID-19 vaccines currently being used are safe and effective at reducing the likelihood of becoming seriously ill or dying from this horrible disease. Moreover, vaccinating the population is necessary in order to secure the fragile healthcare system and eventually put this pandemic behind us.”
Arbitrator Stout also spoke directly to those who refuse to be vaccinated, arguing that his decision should not be taken as vindication for their views. On that point, he concluded:
“Those individuals are in my view misguided and acting against their own and society’s best interests. These individuals may also be placing their ability to earn a living in jeopardy. These individuals should not construe this award as a victory.”
Finally, Arbitrator Stout also stated that while it is true employees have individual rights, including rights to privacy, personal autonomy and bodily integrity, these rights are not absolute and may, in certain circumstances, be outweighed by the rights of the collective. Those circumstances are very likely to include our current one, informed by the COVID-19 pandemic.