By: Christopher Dormer
March 2020 was the start of a very difficult time-period for both employers and employees. We are still in that difficult period. Questions concerning mandatory testing and vaccination policies as focus shifts from digesting the impact of the COVID-19 Pandemic are. The goal of this article is to discuss the most recent developments in mandatory testing and considerations for workplaces who are contemplating mandatory COVID-19 testing and vaccination policies.
Historically, Labour arbitration decisions have provided guidance on mandatory testing and vaccination policies. A recent labour arbitration grievance in Ontario confirmed that mandatory testing for COVID-19 was reasonable in particular circumstances: A policy requiring COVID-19 testing every two weeks was upheld in Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA). In this case, the policy arose within a workplace providing care to patients that were extremely vulnerable to infection. The testing policy provided that medical accommodations would be addressed on a case by case basis and required that an employee be held out of service if they did not comply with the policy. In this decision, it was noted that mandatory testing for COVID-19 was reasonable to prevent the risk of spreading the virus to vulnerable individuals residing within a contained environment. Absent similar factors, it may be difficult for an employer to justify a mandatory testing policy for a business where there is no rational connection between the policy and reducing risks of transmission present due to the nature of the employer’s business.
Employers and employees are also closely monitoring the implementation of vaccination opportunities within their respective jurisdictions. As vaccination schedules continue to develop, questions concerning mandatory vaccination in the workplace are increasing in both unionized and non-unionized workplaces. Until 2015, most decisions involving the healthcare industry recognized that it was reasonable to implement mandatory vaccination and restrict employees from work if they were not willing to be vaccinated.
In 2015 and 2018, two Ontario labour arbitration grievance decisions found that mandatory influenza vaccination policies were unreasonable. However, arbitrators in Alberta do not appear to be following suit. In Alberta Health Services v United Nurses of Alberta, 2020 CanLII 77085 (AB GAA), the arbitration panel followed earlier influenza case law in confirming the employer had management rights to restrict an employee from work when they have been exposed to measles and were unable (or in this case unwilling) to establish vaccination immunity. While the employer was entitled to implement a vaccination policy, the requirements of the policy were not properly communicated to employees which allowed the grievance to be upheld in part.
The Caressant and AHS decisions should not be viewed as blanket approval for mandatory testing or vaccination in all workplaces. If any workplace is considering such policies, serious thought should be given for the purpose of the policy and if that purpose can be achieved by other less intrusive means. In unionized workplaces, significant jurisprudence has developed concerning employer implemented policies or rules. In particular, such policies or rules are scrutinized by the following questions:
- is the policy or rule consistent with the collective agreement;
- is the policy or rule reasonable;
- is the policy or rule clear and unequivocal;
- was the policy or rule brought to the attention of employees before being acted upon;
- where the policy or rule is invoked to justify discharge, was the employee notified that a breach of the policy or rule could result in discharge; and
- has the employer enforced the policy or rule consistently since introduction.
Other than question 1, employers in non-unionized workplaces may wish to consider the above questions when developing, implementing, and enforcing any policies or rules as a best practice. Employers must also remember and consider their obligations to accommodate medical issues or religious beliefs up to the point of undue hardship when crafting policies and rules or risk facing a human rights violation. Given the numerous considerations for developing mandatory testing and vaccination policies and this unchartered territory, we recommend seeking legal advice prior to implementation of any policies.