In a recent arbitration decision, The Toronto District School Board and CUPE, Local 4400 [TDSB], an employer’s mandatory vaccination policy was upheld as reasonable. This decision is part of a recent line of arbitration decisions which have upheld mandatory vaccination policies as reasonable despite the fact that as of March 28, 2022, employers in Ontario are no longer required to follow the public health recommendation to maintain a mandatory vaccination policy. See our blog posts about two of these other recent decisions, here and here.
We have provided a more fulsome explanation of the significance of the TDSB arbitration decision for employers in a separate blog.
A summary of the TDSB arbitration decision is written below.
Background
In TDSB, the Toronto District School Board (the “Board”) implemented its mandatory vaccination policy (the “Policy”) on September 14, 2021. The Policy required all employees who had direct contact with staff or students at a Board workplace to be fully vaccinated with two doses of an approved COVID-19 vaccine. The Policy further required employees to provide proof of being fully vaccinated or otherwise establish that they had a valid medical exemption or exemption under the Human Rights Code. Employees who failed to disclose their vaccination status by November 1, 2021 were to be placed on non-disciplinary leaves of absence without pay, although the Board subsequently extended this prescribed deadline to provide employees with an opportunity to comply with the Policy.
In October and November 2021, the union submitted requests to the Board for reconsideration of the mandatory vaccination requirement within the Policy and suggested that employees should instead be accommodated through frequent testing and other measures. The Board declined the union’s requests on both occasions, however in November 2021, temporary exemptions were granted to approximately 300 staff members because of staffing requirements in the schools. The Board subsequently developed an assessment process to determine whether an unvaccinated employee would be allowed to attend work if testing measures were in place.
It is important to note that the Board has since rescinded its Policy as of March 14, 2022, after the Ministry of Education advised that school boards were no longer required to have a vaccination status disclosure policy in place.
Arbitration
The union brought forward more than 60 grievances on behalf of employees who were placed on non-disciplinary leaves of absence without pay due to their non-compliance with the Policy. The Arbitrator determined two issues at arbitration:
- whether mandatory vaccination infringes on Section 7 of the Charter of Rights and Freedoms [Charter], and if so, whether it is saved by Section 1 of the Charter; and
- the overall reasonableness of the Policy, including vaccine attestation, the requirement that employees be vaccinated in order to attend at work, and unvaccinated employees being placed on non-disciplinary leaves without pay.
Decision
The Arbitrator concluded that the Policy was not contrary to section 7 of the Charter, and was a reasonable exercise of management rights during the time that the Policy was enforced. The Arbitrator noted that both sides submitted expert evidence from medical experts who both agreed on the principle that vaccinations are safe and effective. The experts disagreed, however, on the effectiveness of rapid antigen tests in consideration of the Omicron variant. The Arbitrator disagreed with the view held by one medical expert that rapid antigen testing could be an appropriate substitute for full vaccination against COVID-19, especially for the specific setting of a congested workplace such as a school.
Whether Mandatory Vaccination Infringes on Section 7 of the Charter
The Arbitrator stated that Section 7 of the Charter protects an individual’s right to decide whether or not to be vaccinated. The Policy, however, did not require mandatory vaccination, nor did it mandate a medical procedure or seek to impose a medical procedure without consent, as although the Policy imposed consequences for those who were not vaccinated, employees maintained the choice of whether or not to be vaccinated. The Arbitrator further stated that Section 7 of the Charter does not insulate individuals who choose not to be vaccinated from the economic consequences of that decision.
The Arbitrator concluded that the Policy contained a clear connection between attestation and full vaccination, and the achievement of the stated objective. The Policy sought to protect the health and safety of employees and students, and the Arbitrator stated that it was not overbroad nor disproportionate in its effects on an individual’s life, liberty or security of person.
Whether the Policy was a Reasonable Exercise of Management Rights
The Arbitrator concluded that the Policy was clear, unequivocal, consistently applied, and a reasonable exercise of management rights. In arriving at this conclusion, the Arbitrator emphasized that context matters. In this context, vaccination against COVID-19 was necessary to protect the extremely vulnerable populations within schools. The Arbitrator referred to another arbitration decision, Electrical Safety Authority v Power Workers’ Union, in which the arbitrator stated that in workplace settings where the risk of transmission of COVID-19 is high and there are vulnerable populations (such as immunocompromised individuals, the elderly, and children who cannot be vaccinated), mandatory vaccination policies may not only be viewed as reasonable but may be necessary to protect those vulnerable populations.