Ontario company requires employees to have third dose or 'booster' shot
Last year, we wrote a post summarizing several arbitration awards which dealt with the enforceability of vaccination policies in the workplace. Unsurprisingly, the results were mixed, depending largely on the nature of the workplace (including the degree of risk present) and the level of restriction that was sought to be imposed (for example, mandatory vaccination versus vaccinate or test policies).
Since then, we have seen additional arbitration decisions considering this issue, most recently in Power Workers’ Union v Elexicon Energy Inc.
As with the other arbitration decisions we have reported on, this grievance arose in the context of the union challenging the vaccination policy introduced by the employer, a local energy distributor serving multiple areas. The vaccination policy was first introduced by the employer in October 2021, before the omicron variant became the dominant strain circulating in Ontario.
Prior to introducing the vaccination policy, the employer had implemented a number of other health and safety measures, including masking, physical distancing, testing and remote work arrangements. However, given that most employees worked in close contact with each other and members of the public, the risk of transmission was still significant.
As a result, the company introduced a policy requiring that all employees have “full vaccination status”, defined as two doses and any additional vaccinations recommended by governmental or healthcare authorities, by Jan. 7, 2022. With the rapid rise of the omicron variant in Ontario, and consistent with the Ontario government’s recommendations, the company relied on its policy to require that all employees were also required to get a third or “booster” dose.
In challenging the policy, the union argued that mandatory vaccination was unreasonable in the circumstances, and further objected to the requirement in the policy that unvaccinated employees, or those unwilling to disclose their vaccination status, pay the cost of rapid antigen testing and make a contribution towards the cost of PCR testing.
The arbitrator ultimately held that the policy was enforceable, with two caveats further described below, and dismissed the grievance.
At the outset, the arbitrator recognized that the rapid spread of the omicron variant had dramatically changed the dynamic and circumstances that the employer had been contemplating at the time that the policy was introduced. As a result, the history leading up to implementation of the policy was less relevant than it would be in ordinary circumstances; the current overall circumstances in the community and the current circumstances of the employer had to be considered.
In finding that the policy was reasonable, the arbitrator first noted that the employer had an obligation under health and safety legislation to take every precaution reasonable in the circumstances to protect its workers. The union argued that there was no evidence that vaccinations would be more effective to prevent the spread of omicron than other measures.
In rejecting this argument, the arbitrator noted that it was “inconsistent on these facts with the precautionary principle which justifies that action be taken to protect employees where health and safety are threatened ‘even if it cannot be establishing with scientific certainty that there is a cause and effect relationship between the activity and the harm’.”
The second reason the arbitrator provided for upholding the policy related to the fact that the employer provided an essential service (the transmission of electricity in the community). In such circumstances, it was crucial that the employer have a workforce and could provide the services.
In this regard, the arbitrator noted: “The enormous transmissibility of the virus and the scientific data that third doses of the vaccine decrease significantly the likelihood of severe disease, means it is reasonable for an employee of an electrical utility with two doses to be required to have a third dose and for unvaccinated employees to have three doses to attempt as much as possible to preserve the health of the workforce.”
The arbitrator found, however, that the policy was not reasonable as it applied to:
- unvaccinated employees working exclusively from home with no expectation of a return to the office until April at the earliest
- employees who work exclusively outside or who can be accommodated such that they work exclusively outside.
The arbitrator did not find it necessary to determine the issue of who should have to pay for rapid antigen testing or contribute to the cost of PCR testing.
This decision provides further support for the reasonableness of vaccination policies, including policies which incorporate a requirement for subsequent booster shots. However, it is important for all employers to remember that the context of the specific work environment is key when assessing whether a policy is vulnerable to challenge or not.
In addition to the specific context of the workplace itself, this decision suggests that arbitrators (and potentially judges) will also assess reasonableness in light of the current circumstances in effect at the time the policy is reviewed. This means that even a policy that was reasonable when it was introduced (for example, at the height of the omicron wave) could become unreasonable as time goes on and restrictions in the community at large continue to lessen. Employers would be wise to review their vaccination policy with an employment lawyer regularly to ensure they are not overreaching.
Finally, employers should keep in mind that this decision does not state that refusing to get vaccinated constitutes just cause for dismissal — it only addresses the reasonableness of the employer’s vaccination policy in the unique context of this particular workplace.