Teachers who attested to being unvaccinated allowed to work with testing
An Ontario school board should not have kept three teachers who refused to attest to their vaccination status on unpaid leave when they were willing to submit to protocols used for unvaccinated teachers who had attested to their status, an arbitrator has ruled.
The Waterloo Region District School Board (WRDSB) operates more than 122 schools and continuing education sites in the Waterloo Region of Ontario, serving about 65,000 elementary and secondary students. Teachers for the WRDSB are represented by two separate bargaining units under the teachers’ union – one for regular teachers and one for occasional teachers.
On Aug. 27, 2021, the WRDSB circulated a COVID-19 Immunization Disclosure Protocol to staff. The protocol followed the Ontario Ministry of Education’s announcement that all publicly-funded school boards were required to introduce vaccination disclosure policy for the 2021-2022 school year. The ministry also required regular rapid antigen testing for any employees who were not immunized against COVID-19 without a documented medical reason.
Legislative protection of health information doesn’t apply to vaccination status, the Ontario Labour Relations Board has ruled.
Attestation of vaccination status
The WRDSB’s protocol required employees to provide either proof of vaccination, proof of a medical reason for not being vaccinated, or proof of completion of an educational program about the benefits of vaccination by Sept. 7. The objective was to support safer schools, optimize vaccination rates, adopt a provincially consistent approach to vaccination disclosure policies, and ensure those not vaccinated were being routinely tested.
The WRDSB, along with all other Ontario school boards, were required to provide data on how many individuals provided proof of vaccination, how many attested to being fully vaccinated without proof, how many provided a documented medical reason for not being vaccinated, how many hadn’t yet submitted an attestation, and percentages of their total workforce who were vaccinated.
On Sept. 3, the teachers’ union suggested that the inclusion of a “choose not to disclose” option would ensure all employees completed the attestation form, rather than employees just refusing to fill it out. However, the WRDSB didn’t add the option, so the form only contained the options “yes, no, in progress.”
The same day, the WRDSB sent a memo to all employees that they were required to submit a formal attestation by Sept. 7, consisting of either a proof of vaccination or proof of a medical exemption. Those who didn’t intend to be vaccinated without a valid medical exemption or other human rights protected ground, would have to attend the education session and participate in regular testing. Additional memos were sent on Sept. 10 and Sept. 17, with the deadline moved to Sept. 21.
Four Ontario workers were unsuccessful in their attempt to challenge their employer’s vaccination policy on health and safety grounds.
Three teachers declined to disclose status
A permanent teacher who had been with the WRDSB since 2018 did not want to disclose her vaccination status. Because there was no option to not disclose her status, she opted not to fill out the attestation form. She was given until Sept. 27, after which she was placed on “unauthorized unpaid status” and was prohibited from attending the workplace.
The teacher indicated that she was willing to participate in the testing program for employees who were not vaccinated as well as wear any personal protective equipment as required, but the board kept her on unpaid leave because she hadn’t filled out the attestation form. She remained off work until March 21, 2022, when the vaccination protocol was lifted.
An occasional teacher who had been with the WRDSB since 2017 also didn’t want to disclose her vaccination status. She sent an email saying that she was “doing my best to be a complaint employee” and she was willing and able to work. She was also placed on unauthorized unpaid status on Sept. 28 for failing to submit the attestation form and was prohibited from being offered any assignments. She said that she was willing to take any education program offered, undergo regular testing, and wear personal protective equipment, but the WRDSB didn’t respond. She remained on unpaid status until March 21, 2022.
A second occasional teacher, who had been with the board since 2005, joined the other two teachers in not wanting to disclose her vaccination status to the WRDSB. She chose not to fill out the attestation form since there was no option to decline to disclose her status or opt for the education session and testing. As with the other two teachers, she was willing to take an education program and get tested, as well as wear any personal protective equipment that was required. She remained on unauthorized unpaid status. When the vaccination protocol was lifted on March 21, 2022, she was notified and didn’t find out about her change in status until April.
An Ontario arbitrator found that requiring workers to be tested for COVID-19 was a reasonable alternative to vaccination.
Unpaid status unreasonable: union
Both the bargaining units for the regular and occasional teachers filed grievances, claiming that it was unreasonable for the WRDSB to put the three teachers on unpaid leave while unvaccinated teachers who completed the attestation form with their refusals were allowed to continue teaching after completing the educational program and participating in regular testing.
The arbitrator noted that the union did not challenge the reasonableness of the vaccination attestation procedure in a school setting or the protocol, just whether it was reasonable to place teachers on forced unpaid leaves for simply failing to attest to their status.
The arbitrator found that the protocol’s purpose was to comply with provincial objectives of ensuring safety in schools, as well as collecting data on staff vaccinations. The arbitrator also found that the WRDSB took a balanced approach by allowing those who were not fully vaccinated to continue to work if they attended the education program and were tested regularly, if they completed the attestation form.
The arbitrator noted that the WRDSB notified employees in advance of the possible consequences of a failure to comply with the protocol. However, the Ministry of Education’s disclosure policy did not require teachers to be kept off work if they refused to disclose their vaccination, the arbitrator said, noting that the WRDSB’s report to the ministry could include now many employees had not yet attested.
It was in the WRDSB’s best interests, as well as those of teachers, students, and parents, to know the immunization rates in the schools, said the arbitrator.
A BC arbitrator upheld a transit authority’s vaccination policy that was maintained after public health restrictions were relaxed.
Differential treatment reasonable, but not the specific treatment
The arbitrator found that it was reasonable to treat teachers who failed to attest differently from those who complied with the disclosure protocol but weren’t vaccinated, but there was no rationale for keeping the former on unpaid leave after they offered to comply with the educational and testing regimes that were available for unvaccinated teachers who complied. There was no different risk to teachers and student than from those who were not vaccinated and complied with the attestation protocol, said the arbitrator.
“After gathering and submitting all the required data to the ministry and adopting an educational and testing regime for non-immunized (or not proven to be immunized) employees, there was no further reason to treat those who did not attest any differently from those who did,” said the arbitrator. “The school board could have simply assumed that those who did not attest were unvaccinated and make the educational and testing requirements available to them as a condition of their return to the classrooms.”
The arbitrator determined that it was unreasonable to keep the three teachers on unauthorized unpaid status when unvaccinated teachers who had attested to their vaccination status were allowed to work. The WRDSB was ordered to compensate them for loss of benefits, income, and seniority. See Waterloo Region District School Board v. Elementary Teachers’ Federation of Ontario, 2023 CanLII 40527.
