COVID-19 testing of workers reasonable alternative to vaccination: arbitrator

'We've seen employees who don't have any intent to comply wait until the last minute, and it's a challenge for employers'

COVID-19 testing of workers reasonable alternative to vaccination: arbitrator

“Occupational health and safety is the crucial issue that employers need to be thinking about when they're rolling out [COVID-19 vaccination] policies. Where there's this risk of COVID-19 in society, it behooves employers to do something, and certainly what arbitrators are basing their decisions on is this reasonable approach to protect workplace health and safety.”

So says Joel Smith, a labour and employment lawyer and partner with Williams HR Law in the Toronto area, following an Ontario arbitrator’s decision to uphold electricity transmission and distribution utility Hydro One’s vaccination policy as reasonable.

On Sept. 22, 2021, Hydro One informed employees that it would be introducing a COVID-19 vaccination policy. It consulted the employees’ union, the Power Workers’ Union (PWU), and revised the policy on Nov. 2.

The policy indicated that all employees were required, by Oct. 22, to provide Hydro One with one of the following: proof of vaccination against COVID-19; confirmation of a medical exemption from taking the vaccine; an exemption under a protected ground of the Ontario Human Rights Code; or a refusal to disclose vaccination status. Employees who declined to reveal their vaccination status, along with those who weren’t vaccinated, were required to undergo regular testing for COVID-19 with rapid antigen tests, before reporting to work on Nov. 8.

Twelve employees failed to comply by Nov. 8, either by not providing proof of vaccination or a rapid antigen test with a negative result. They indicated that they had concerns about the policy shortly before the deadline, which was why they hadn’t moved forward with vaccination or testing. Hydro One placed all 12 on an unpaid leave of absence until they complied with the policy.

One of the employees decided to retire while the other 11 eventually complied. Hydro One returned the 11 to work following their compliance.

However, the PWU filed a grievance, claiming that Hydro One didn’t address legitimate concerns that the 12 employees in question had about the policy in a timely manner. This resulted in the employees having to go on unpaid leave, which unfairly deprived them of income, the union said.

The PWU also argued that Hydro One should have looked into accommodating the workers with remote work rather than unpaid leave.

Read more: An Ontario company’s COVID-19 vaccination policy requiring a booster shot was upheld as reasonable in the dynamic circumstances of the pandemic.

The arbitrator noted that Hydro One’s vaccination policy was reasonable and necessary to “address the ongoing health and safety issues arising from the current COVID-19 global pandemic.”

The arbitrator found that employees and the PWU were informed of the policy one month before it came into effect and nearly seven weeks before the deadline, which he said was reasonable advance notice. In addition, it was general public knowledge that employers were implementing mandatory COVID-19 vaccination policies before Hydro One introduced its own. However, the 12 employees didn’t raise their concerns until the last minute, which didn’t give Hydro One much time to address them.

“Employers have generally given significant amounts of time to employees to comply, a significant amount of time to actually get vaccinated before the policy kicks into effect,” says Smith. “Over and over, we've seen employees who clearly don't have any intent to comply with the policy, and they wait until the last minute and it's a challenge for employers to deal with.

“We see the arbitrator in this case acknowledging that that's not a reasonable approach – I think it’s a beneficial development for employers who have these types of policies in place.”

Reasonable alternative

The arbitrator also found that banning employees from coming to work if they don’t provide proof of vaccination or a negative test was fair and reasonable in the circumstances. Hydro One had an obligation under the Ontario Occupational Health and Safety Act to take reasonable precautions to protect the health and safety of its employees and the public, and the policy’s requirements were “a reasonable compromise” to accomplish that purpose while considering employee rights, said the arbitrator.

Read more: A refusal to get vaccinated is generally not cause for dismissal, an employment lawyer writes.

Offering testing as an alternative to vaccination is a factor that is frequently considered in determining the reasonableness of vaccination policies, according to Smith.

“The arbitrator acknowledged the fact that COVID-19 tests, especially the rapid tests in particular, are minimally intrusive, and we've seen other decisions that have suggested the same thing with respect to employee concerns that these tests are an unreasonable violation of their bodily integrity,” says Smith. “Arbitrators have consistently found that these tests are really a minimal intrusion, and from a privacy standpoint, the test results aren't being are being recorded by the employer either.”

“Arbitrators are seeing these tests as a simple, easy thing for employees to do that really doesn't impact them in any significant way, and they're allowing employers to use that as a tool to try to protect their workforces,” he says.

As for accommodation, the arbitrator found that it wasn’t necessary. The evidence indicated that most of the employees couldn’t perform their jobs remotely and, even if they could, Hydro One had already provided a reasonable alternative to not disclosing their vaccination status — getting tested with a rapid antigen test. It was the employees’ choice to refuse the reasonable alternative and Hydro One had no further obligation to accommodate them, the arbitrator said in dismissing the grievance.

When navigating the implementation of COVID-19 vaccination policies, or similar policies, employers should ensure that safety is the main objective and they should take employee concerns seriously, says Smith.

“Arbitrators take the fact that employees have concerns about these types of policies seriously and the arbitrator in this case appears to have come to the decision that what the employer did was reasonable in part because they were responsive to those employees when they did raise their concerns,” he says. “Ensuring that those employees are not ignored is a valuable tool for employers to ensure that they can uphold these policies.”

“Arbitrators want to see that employers are acting in good faith.”

See Hydro One Inc. and Power Workers’ Union (Jan. 31, 2022), John Stout – arb.

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