In Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA) (Elexicon Energy), a union challenged the reasonableness of an electric utility’s mandatory COVID-19 vaccination policy (Policy). Arbitrator Mitchell found the policy reasonable “for employees who work indoors, even occasionally.” He determined, however, that the policy was not reasonable since it applied to employees who work from home and do not intend to return to work in the near future and will not be required to do so. , and to employees who work exclusively outside.
Per policy, an employee with two doses of the COVID-19 vaccine should receive a third dose, and unvaccinated employees should receive three doses. The grounds for exemption from the Policy and refusal of vaccination are those protected by the human rights code (OHRC), including confirmed medical reasons. The employer will attempt to provide an appropriate individualized accommodation plan if the reasons for vaccination refusal are covered by the OHRC.
Those exempted will have to perform rapid antigen tests twice a week and demonstrate a negative result. The cost of the test for exempted persons will be paid by the employer. Unvaccinated employees without an exemption are responsible for rapid antigen testing and must pay $25 for the cost of employer-administered PCR testing. Employees who do not provide a valid reason for not being vaccinated or who do not comply with policy will be required to complete COVID-19 vaccine awareness training. If they are still not vaccinated by February 21, 2022, they will not be able to enter the employer’s property and workplaces and will be placed on unpaid leave. Depending on the circumstances, an employee may also be subject to disciplinary action, up to and including termination. Any such discipline will remain subject to arbitral review.
The policy was issued and challenged when the Delta variant was predominant in Ontario. When the case was finally heard, however, the dominant strain was the Omicron variant, which dramatically changed the circumstances. Omicron was highly transmissible and spreading rapidly, the number of cases including at the employer’s had increased dramatically, lockdowns and other public health restrictions were reimposed, hospitalizations increased, schools and businesses closed again, and the employer introduced new measures to combat the spread of Omicron.
In rendering his decision, the arbitrator noted that while normally the circumstances prior to the introduction of the policy would be the context in which its reasonableness would be considered, the pre-Omicron experience had become less relevant to the analysis. . Emphasizing that the reasonableness of a mandatory pandemic vaccination policy “is contextual and highly dynamic,” the arbitrator pointed out that “precedents decided in a completely different context…necessarily become less relevant than they would be otherwise”.
The arbitrator decided that the employer’s policy was reasonable in the circumstances for the following reasons:
- It required a small minority of unvaccinated employees to be vaccinated with three doses of the vaccine, and the vast majority of employees with two doses to be vaccinated with the third booster dose.
- Section 25(2)(h) of the Occupational Health and Safety Act imposes a positive obligation on an employer to “take every precaution reasonable in the circumstances for the protection of a worker”. Under the law, employees have the right to a safe workplace and the employer has a duty to take every precaution reasonable in the circumstances to ensure that its employees have such a workplace. Vaccinated employees have a lower risk of being infected with Omicron than unvaccinated employees, and the more likely employees are to be infected, the more likely they are to transmit Omicron to others. These are not decisions to be left to the government, as the union asserts. Arbitrator Mitchell noted that “in my view, in Ontario, aside from long-term care, the government has explicitly left it to individual employers to determine, in the context of their individual workplaces, whether Compulsory vaccination should be implemented”.
- It is the responsibility of the employer to provide the essential essential services, namely to transport electricity in the community and to maintain the supply. The employer must ensure that it has a workforce capable of providing these services adequately. Given the enormous transmissibility of Omicron and the scientific evidence that third doses significantly decrease the risk of serious illness, to safeguard the health of staff, it is reasonable to require that an employee receiving two doses receive a third dose and to require unvaccinated employees to have three doses.
The arbitrator, however, found that the policy was unreasonable insofar as it applied:
- Unvaccinated employees who worked exclusively from home and for whom there was no expectation when returning to the office, and
- Employees who work entirely outside or who could be accommodated to do so.
Although the parties disputed the reasonableness of the rule requiring unvaccinated employees to pay the cost of the antigen test and to pay $25 for the cost of the PCR test, the arbitrator found it unnecessary to decide the issue, but said he would fix it if necessary.
Conclusion for employers
The referee in Elexicon Energy followed some trends that we have seen established by other arbitrators in previous arbitration awards relating to mandatory vaccination policies of unionized employers. First, in deciding to uphold the employer’s policy, Arbitrator Mitchell considered the nature of the service provided by the employer and recognized that unless its employees make every effort to stay healthy faced with the highly transmissible variant of Omicron, the employer might find itself without a workforce that could “keep the lights on” in the communities it served.
As well as, Elexicon Energy suggests, as previous arbitral awards have done, that OHRC-compliant mandatory vaccination policies will be considered reasonable and enforceable, and deemed to satisfy an employer’s obligation under s. 25(2 )h) of the OHSA to “take every precaution reasonable under the circumstances for the protection of a worker.
Arbitrator Mitchell also pointed out that context is critically important in an analysis of the reasonableness of a mandatory vaccination policy. The COVID-19 pandemic has been dynamic, with at least three main variants emerging to date, all differing in their transmissibility and the nature of the harm they can cause. Employers should be aware that any analysis of the reasonableness of a mandatory policy will be based on the context at the time of the analysis, as well as whether it applies to employees who work inside (even partially ) or exclusively outdoors, or at home with no intention of returning to work in the near future.