In a recent arbitration decision on a COVID-19 vaccination policy, an Ontario arbitrator upheld a school board’s vaccination policy: Toronto District School Board v. Canadian Union of Public Employees, Local 4400 (PR734 COVID-19 Vaccine Procedure Grievance), [2022] O.L.A.A. No. 82).
Arbitrator Kaplan found both that the employer’s policy did not violate the Charter of Rights and Freedoms, and that the policy was a reasonable exercise of management rights.
Background
In September 2021, the Toronto District School Board (the “Board”) introduced a COVID-19 vaccination policy (the “Policy”). The Policy required all employees who had direct contact with staff or students to be fully vaccinated. Employees were required to provide proof of vaccination by November 2021 or establish a valid Human Rights Code exemption to becoming vaccinated. Employees who did not disclose their vaccination status by the deadline (which was ultimately extended) and did not become fully vaccinated would be placed on a non-disciplinary unpaid leave.
The union sought to have the Board reconsider its implementation of the Policy in October and November 2021. The Board declined, but did grant temporary exemptions to approximately 300 unvaccinated employees due to staffing requirements. In deciding whether or not to grant a temporary exemption, the Board used a decision matrix to determine whether the operational need for the employee outweighed the safety risks posed by having an unvaccinated employee in the workplace. The employees who were granted exemptions were required to undergo regular testing. Approximately 200 employees were placed on unpaid leave.
On March 10, 2022, the Board passed a resolution rescinding the Policy after the Ministry of Education advised that they would no longer require vaccination status disclosure. The employer rescinded the Policy effective March 14, 2022.
More than sixty total grievances, including policy, group, and individual grievances, were filed in relation to the Policy. The arbitration before Arbitrator Kaplan addressed two issues:
(1) whether mandatory vaccination infringes section 7 of the Charter of Rights and Freedoms (the “Charter”), and if yes, whether it was saved under section 1, and
(2) the overall reasonableness of the Policy.
Decision
Both parties relied on expert evidence. The experts were largely agreed that vaccination is the best way to keep people and workplaces safe from infection. However, in the opinion of the union’s expert, rapid antigen tests reduced transmission in the workplace and could be considered an effective substitute or alternative to vaccination. The employer’s expert disagreed. Arbitrator Kaplan preferred the evidence of the employer’s expert.
Arbitrator Kaplan found that vaccination was the best way to prevent transmission in schools and that rapid antigen tests should only be relied on where absolutely necessary. Arbitrator Kaplan considered that when the Policy was introduced, many students were ineligible for vaccination due to age limitations. At the time of the decision, students under the age of 5 remained ineligible.
Arbitrator Kaplan found that the Policy did not violate section 7 of the Charter. The Policy did not require mandatory vaccination, and therefore did not violate anyone’s life, liberty or security of the person. The arbitrator held that Section 7 of the Charter does not insulate an individual from the economic consequences of their decision not to be vaccinated.
Arbitrator Kaplan also found that the policy was reasonable. Arbitrator Kaplan highlighted the need to protect vulnerable populations, in this case children who could not be vaccinated, and the evidence that vaccination was the best means of reducing contraction and transmission of COVID-19 in schools. The Policy was clear and unequivocal and consistently applied. Further, the Board was required under the Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of its employees. Considering the expert evidence, it was “impossible to conclude that requiring employees to be fully vaccinated is not a precaution reasonable in the circumstances” (at para 72).
This award follows a number of awards across Canada where arbitrators have upheld vaccination policies. Vaccination policies are assessed in the specific context under which they were implemented. As demonstrated by Arbitrator Kaplan’s award, a number of factors are relevant to this analysis, including the vulnerability of the population served by the employer.
If you have further questions about this article, or about vaccination policies more generally, please contact your Harris lawyer.
