Case In Point
Arbitrator Finds Mandatory Vaccination Policy Implemented by Energy Sector Employer to be Reasonable
Date: February 9, 2022
In Power Workers’ Union v Elexicon Energy Inc., Arbitrator Michael Mitchell recently held that a mandatory vaccination policy implemented by Elexicon Energy Inc. (Employer) was reasonable for all employees, except for those who had been working exclusively from home and had no expectation or requirement of returning to the workplace in the near future, and for those who worked exclusively outdoors.
At the arbitration, Arbitrator Mitchell was tasked with determining two issues raised by the Power Workers’ Union (Union). The first was whether the Employer’s policy requiring mandatory vaccination was reasonable, and the second was whether it was reasonable for the Employer to require those employees who were accommodated pursuant to an approved exemption to pay for their own rapid antigen testing.
By way of background, the Employer is a local energy distributer serving Ajax, Whitby, Oshawa, Belleville and Gravenhurst. The Employer has 273 employees in total, some of whom work in offices and some “in the field.”
On October 28, 2021, the Employer introduced a policy requiring all employees to confirm full vaccination status. For future employees, vaccination was to be a condition of employment. The Employer provided its employees until January 21, 2022 to confirm that they had received a first dose, and until February 21, 2022 to confirm their second dose.
The Union had supported voluntary vaccination and compulsory testing. However, it did not support unilateral compulsory vaccination policies or the requirement that unvaccinated employees or those unwilling to disclose their status pay the cost of rapid antigen testing and contribute to the cost of PCR testing.
In his analysis, Arbitrator Mitchell noted that since the time the Policy was introduced, cases again surged with the new Omicron variant. He wrote:
4. The enormous change in circumstances since the policy was introduced three months ago … demonstrates very clearly that what constitutes a reasonable mandatory vaccination policy in the course of a pandemic is contextual and highly dynamic. In such an environment both the overall circumstances in the community and the circumstances of the particular employer, take on great significance, while precedents decided in a completely different context, even as recently as November 2021, necessarily become less relevant than they might otherwise be.
Arbitrator Mitchell concluded that the general policy of the Employer requiring vaccination by its employees was reasonable in the particular circumstances of the case, particularly as it required a small minority of unvaccinated employees to become vaccinated with three doses of the vaccine and required the large majority of employees with two doses of the vaccine to become vaccinated with the third or booster dose.
However, Arbitrator Mitchell agreed with the Union that there were less intrusive means to accomplish the policy’s objective for certain employees, and carved out those employees who had been working remotely since March 2020, as well as those employees who worked exclusively outdoors.
The primary reasons for Arbitrator Mitchell’s conclusion were as follows:
- All employees have a right by law to a safe workplace and the Employer has a legal duty to take every reasonable precaution in the circumstances. Arbitrator Mitchell noted that vaccinated employees are at less risk of becoming infected with Omicron than those who are unvaccinated, and the more likely employees are to become infected, the more likely they are to transmit the virus to others.
- The Employer has the reasonable responsibility of providing essential services (the transmission of electricity) and must ensure that it has a workforce that can provide the necessary services. The Employer in this case is responsible for the transmission of electricity and the critical maintenance of the supply of electricity. This critical function would be seriously undermined with ongoing absences and illnesses among its workforce.
The Union also submitted that it was “undemocratic” for the Employer to address a general public health issue, and that this was properly left to the government to decide. Arbitrator Mitchell responded that this was a “red herring” issue, but nonetheless stated:
96. […] in my view, there is nothing fundamentally undemocratic about an employer making health and safety rules for its workplace, especially in the context of a dangerous pandemic. OHSA places a positive duty on an employer under section 25(2)(h) to “take every precaution reasonable in the circumstances for the protection of a worker”. It is not a defence open to an employer for that failure to take action to protect employees in the workplace from the spread of the virus that while some measures such as testing are necessary and permissible, other equally or more important measures that impinge upon an employee’s right to bodily integrity and privacy, such as vaccination, cannot be contemplated under the legislation because that is within the sole purview of the Government of Ontario. […]
The Arbitrator noted that there may be other circumstances, aside from those discussed in his decision, where reasonable accommodations could be made prior to persons being disciplined, though he did not suggest what those might be.
Arbitrator Mitchell also concluded it was unnecessary, in the circumstances, to determine the issue of the responsibility of unvaccinated employees to pay for rapid antigen testing and to pay $25 towards the cost of PCR testing.
This decision provides further insight into the treatment of vaccination policies in the unionized sector. It reinforces that arbitrators are approaching each case with a close eye on the unique circumstances of the employer’s business, how that business operates and how to balance the respective interests of employers and employees. As Arbitrator Mitchell stated, the question of reasonableness of a mandatory vaccination policy during a pandemic will be highly contextual and dynamic.
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