'There's not much that the employer can do without a clear request' for accommodation
The termination of a school custodian for failing to comply with a mandated provincial COVID-19 testing policy was excessive, although discipline was justified, a New Brunswick arbitrator has ruled.
The worker, 44, was initially hired by the department in 2012 as a casual custodian. He became a full-time custodian at a school in 2019. He didn’t have any discipline on his file.
On Aug. 19, 2021, the New Brunswick Department of Education and Early Childhood Development introduced a policy mandating its employees to provide proof of full vaccination or undergo regular COVID-19 testing. Employees who weren’t vaccinated would be required to submit to point-of-care testing three days per week, as arranged by individual schools or the school district onsite. They also had to complete a polymerase chain reaction (PCR) test once per month.
The department set a deadline of Sept. 3 to provide proof of vaccination or to start following the testing requirements. A failure to comply with testing or masking requirements could face disciplinary measures “up to and including dismissal.”
When the department introduced the policy, the worker was concerned about the methods of testing. When he saw the swab being used for the onsite point-of-care testing, he refused to get tested. He had been listening to audio courses about the COVID-19 vaccine that gave him health and safety concerns and he believed that the policy was “highly illegal.”
Request for accommodation
The worker claimed that he asked for an accommodation based on his religious beliefs by talking to the union “or with the district with a lot of different people.” He sent an email stating he was concerned about COVID testing being genetic testing and against the law, and “accommodation should have been used to deal with my situation.”
On Sept. 7, the department issued the worker a written reprimand for refusing to comply with the policy. Three days later, the worker received a second written reprimand and a five-day suspension. The suspension letter stated that if the worker continued to refuse to comply after Sept. 13, an automatic unpaid suspension would follow.
The worker still refused to submit to testing, so on Sept. 21 the department terminated his employment for non-compliance with the policy. The next day, the policy was amended to remove the requirement for a monthly PCR test.
The union filed a grievance alleging that the department breached the collective agreement by terminating the worker without just cause. It also alleged discrimination based on religious beliefs or creed.
On Oct. 7, the policy was amended again to allow unvaccinated employes to be placed on leave without pay. On March 18, 2022, the department allowed unvaccinated employees to return to work on March 28, ending the unpaid leave for those who had been placed on it.
Religious beliefs
According to the worker, he was raised as a Christian and he didn’t attend church services in person, but he listened to sermons every day and studied Bible scriptures to manage his life decisions. He also testified that he believed that the testing policy was related to the biblical “mark of the beast” prophecy and he had a right not to manipulate his body medically through the MRNA vaccine technology.
The department accepted that the worker’s termination was unjust and agreed to reinstate him with retroactive pay and benefits to March 28, 2022, the date when the worker was in compliance with the policy and could have been invited back to work along with other unvaccinated employees. However, the union argued that the worker should be reimbursed his full back pay and benefits to the date of his termination, because it wasn’t necessary for him to be on leave as his custodial duties – cleaning the school at night – wouldn’t involve interacting with others. It also asserted that the worker was entitled to aggravated damages to compensate him for the financial impact of the termination on his credit rating, along with the moral and mental impact of the unjust termination, violation of his human rights, and the failure to reinstate him when the policy was amended in October 2021 and March 2022.
The arbitrator agreed that the worker’s termination was excessive but supported the department’s right to impose discipline for non-compliance with the policy. To accept the union’s position that the worker didn’t need to be placed on leave after his refusal to get tested would “incorporate exceptions into the employer’s policy that take into account the nature of the work being performed by employees and its impact on the spread of COVID,” said the arbitrator in finding insufficient evidence that the worker’s job functions could have been safely performed without risk of contamination or exposure to COVID-19.
In addition, the policy – which reasonableness was unchallenged by the union – allowed for discipline for non-compliance, and removal of the worker from the workplace until the policy terms were met was justified, the arbitrator said.
“The board assessed the policy that was in place at the time and concluded that if it were to accept the union's position, it would have to read in exceptions to the policy that weren't in effect,” says Abigail Herrington, a lawyer at McInnes Cooper in Saint John, NB. “The employer had a policy that allowed discipline based on failure to comply with the policy at the time, so a leave without pay would have been appropriate in those circumstances.”
No prima facie discrimination
The arbitrator found that the union didn’t establish a prima facie case of religious discrimination. Although the worker referred to his Christian faith and the “mark of the beast” in his testimony, the worker’s objections to the department at the time were primarily framed around legal and safety concerns, and any religious elements were either not clearly articulated or mentioned before the worker’s dismissal, said the arbitrator.
The onus is on the worker to establish prima facie discrimination, says Herrington.
“In order to have a claim of discrimination, a request for accommodation has to be made and then denied by the employer,” she says. “One of the key elements in this case was that the worker hadn't properly articulated that he was asking to be accommodated on the basis of religious belief - the employer's response to an accommodation request has to be based on the information that was provided at the time, not at the hearing itself.”
It’s not uncommon in discrimination and accommodation cases for the employee not to live up to their part of the accommodation process, adds Herrington.
“It seems that this is one of those cases where there's a general request for accommodation, but there's not sufficient information provided by the employee to enable the employer to properly assess it,” she says. “And the case law is clear that the accommodation process is a two-way street - there's an obligation on an employer, but there's also a corresponding obligation on the employee to provide enough information for the claim to be assessed and to participate in the accommodation process, so there's not much that the employer can do without a clear request.”
Normal distress of termination
As for aggravated damages for mental and financial hardship, the arbitrator again noted that the reasonableness of the policy wasn’t challenged by the union and found there was no evidence of egregious conduct by the department or that the consequences the worker suffered were beyond the normal consequences and distress of a termination.
The department was ordered to reinstate the worker to his custodian role with no loss of seniority and to pay him compensation for lost wages and benefits from March 28, 2022 -the date the policy allowed unvaccinated employees to return to work - including retroactive wage increases and shift premiums and minus amounts that the worker earned in another job he found as part of his mitigation efforts.
The union’s claims for aggravated and human rights damages were denied.
“The arbitrator seemed to put a lot of weight on the fact that, in the context of the COVID pandemic, we can go back and remember all the different rules that were in place back in 2021, and the vaccination and testing policy was an automatic policy,” says Herrington. “The worker wasn't targeted or singled out by the employer for dismissal, this was an across-the-board policy related to the pandemic that was necessary for health and safety reasons – and it was actually mandated by the government of New Brunswick at the time.”
“Obviously, termination is a disciplinary measure, but those factors together led the arbitrator to conclude that there was nothing egregious about the way that the worker was treated.”
See CUPE, Local 1253 and New Brunswick (Department of Education and Early Childhood Development) (RM) (Feb. 19, 2025), Lynne J. Poirier - Arb (N.B. arb.).
