Ontario Power Generation v The Power Workers Union (J Murray) (unreported, Nov 12, 2021), is a new Ontario decision which dealt with the reasonableness of several COVID-19 vaccination and testing policies of an employer. The arbitrator’s main findings were:
- The employer had to pay for regular rapid antigen testing for employees who had chosen not to get vaccinated, but the employees had to take the tests on their own time
- Employees refusing both vaccination and testing could be placed on unpaid leave
- A policy requiring vaccination for access to the fitness facility – and not permitting testing as an alternative – was considered reasonable due to the increased risk of COVID-19 transmission in that setting
This case is important for several reasons. First, because there are so few cases on COVID-19 vaccination policies despite their rapid deployment of late, and second, because this case appears to be the first one to put reasonableness limits on the terms an employer can insist-upon in a vaccination policy.
Facts
The following is a summary of what I see as the most significant facts leading to this outcome:
- The employer instituted a vaccination policy, which required that employees either get fully vaccinated against COVID-19 or undergo regular rapid antigen testing on their own time and at their own expense. Employees who did not wish to disclose vaccination status were required to do the antigen testing. The employees would take a video of themselves taking the test and then upload that to the employer. Any unvaccinated employees refusing to be tested would be placed on unpaid leaves of absence pending potential discipline
- The employer instituted a separate policy requiring vaccination for any employees who wished to access the employer’s fitness facility. This policy did not allow rapid testing as an alternative to vaccination
- The collective agreement provided that employees were to have access to the fitness facility, and required that certain classes of employees were to maintain a certain level of physical fitness
- The union grieved the requirement that employees pay for rapid antigen testing, and that they do it on their own time
- The union grieved that employees refusing vaccination and testing would be placed on unpaid leaves of absence
- The union also grieved the apparent double standard, whereby employees could not access the fitness facility unless fully vaccinated
Analysis / Conclusion
Respecting the general vaccination policy, the Arbitrator had several findings. The Arbitrator found that it was unreasonable for the employer to make employees pay for the rapid antigen tests, and directed the employer to pay for them. However, the Arbitrator also found that it was reasonable for employees to be required to take the antigen tests on their own time, because that best served the goal of keeping them out of the workplace if they tested positive.
The Arbitrator found that the policy of unpaid leaves of absence for those refusing both vaccination and testing was reasonable, noting as follows:
In this situation, where most employees have been vaccinated, and virtually all the rest are willingly participating in the reasonable alternative of Regular Rapid Antigen Testing, employees who refuse to do either can be sent home on an unpaid leave pending completion of the discipline process.
The Arbitrator found that the policy of allowing only vaccinated employees to use the fitness facility was reasonable despite the higher standard imposed, noting as follows:
It is a matter of public record that gyms are high risk areas for transmission of COVID-19 due to high touch surfaces, the increased potential for close contact, and the greater range of respiratory droplets due to heavy breathing during vigorous exercise. […]
The Occupational Health & Safety Act in section 25(2)(h) requires an employer to take every precaution reasonable in the circumstances for the protection of a worker. This obligation trumps the [collective agreement]. The gym, at least for employees covered by the [collective agreement], is part of the workplace and the obligation to take every precaution reasonable in the circumstances applies. Although the gym operated by OPG is not public, the same logic that has informed the Ontario Government to require patrons of gyms to be fully vaccinated is applicable here. The high risk of covid transmission in gyms is a reality in private and public gyms. […]
My Take
It is good to see there are some employers implementing policies that appear to be sincere attempts to strike a balance between the rights of those who wish to be vaccinated and those who do not. I think the finding in this case that the employer had to pay for the rapid antigen tests is the biggest win for employees’ rights.
I have no comment on the finding that employees who refused vaccination or testing were allowed to be put on unpaid leaves in this case.
In answering the question about whether mandatory vaccination for access to the gym was reasonable in OPG v PWU, the Arbitrator simply pointed to the higher risk of transmission in the gym setting, and found that mandatory vaccination was therefore reasonable. For one reason or another, the Arbitrator did not seriously consider whether total vaccination was in fact more effective than regular antigen testing in preventing transmission. In my view, that is a key question that should be answered before any mandatory vaccination policy is found to be reasonable.
Ontario Power Generation v The Power Workers Union (J Murray) (unreported, Nov 12, 2021) is an unreported (unpublished) case. If you need a copy, please email me at jfairbrother@bowriverlaw.com and I would be happy to provide it.
