HomeMy WebLinkAboutUnion ET AL 24-01-30IN THE MATTER OF AN ARBITRATION
UNDER THE LABOUR RELATIONS ACT
BETWEEN:
CENTRE FOR ADDICTION AND MENTAL HEALTH
(CAMH)
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 500
(“the Union”)
VARIOUS GRIEVANCES RELATED TO
COVID-19 VACCINATION POLICY
A W A R D
Arbitrator: Barry Stephens
For the Employer: Daryn Jeffries – Rae Christen Jeffries LLP
For the Union: Sarah Khan - Grievance Officer for OPSEU
Heard by Videoconference on
November 9, 2023
INTERIM AWARD
Introduction
[1] The grievances before me were filed against the employer’s COVID-19 policy. The
parties settled some of the grievances but there are 11 individual grievances and a policy
grievance remaining. The disputed policy required mandatory vaccination against the
virus. This interim award challenges that part of the policy that called for putting non-
compliant employees on an unpaid leave of absence prior to termination.
Review of Facts
[2] The issue of the reasonableness of the policy was argued on the basis of a joint
Statement of Undisputed Facts, which can be briefly summarized. CAMH is the largest
mental health teaching hospital in Canada, with a staff of more than 4,500 employees. As
is well-known, the COVID-19 pandemic emerged in late 2019 and since has claimed the
lives millions of people worldwide. The parties agreed that the vaccines authorized for
use in Canada were safe and effective at preventing severe illness, hospitalization and
death, and public health experts recommended that vaccinations were the single best
method of protection against the virus. The employer offered employee vaccination as
soon as the vaccine became available to healthcare workers in December 2020. It was
notable that public acceptance of the vaccine was high across the province, with 88
percent of Ontario citizens having received at least one dose by March 2023. The parties
agreed that there were other methods of combatting the spread of the COVID-19 virus,
but these were subject to limitations. Rapid Antigen Tests (RATs), for example, were
2
subject to false negative results. The parties agreed, however, that the use of RATs and
Personal Protective Equipment (PPE) reduced the risk of transmission, and there was no
allegation that any of the grievors were resistant to such measures. There was no dispute
between the parties that COVID-19 was a highly transmissible, deadly virus, that the
vaccines offered to Ontario citizens were generally safe, and that expert opinion was
largely agreed that vaccination was the best way to keep workplaces safe from the spread
of COVID-19.
Union Submissions
[3] All of the individual employees who filed grievance were place on non-paid leave
of absence at some point. The union accepted that the employer was required to institute
a COVID-19 policy under the provision of provincial government Directive 6. The union
also acknowledged that the employer had an obligation under Article 25.2(h) of the
Occupational Health and Safety Act to, “…take every precaution reasonable in the
circumstances for the protection of a worker.” The union also stipulated that it did not
challenge either the safety or the effectiveness of the COVID-19 vaccines. The union
asserted, however, that the decision to place the grievors on unpaid leave of absence
failed to balance the rights of those employees who declined to become immunized
against COVID-19.
[4] The union argued the grievors were compliant with all other measures used to
combat the virus, such as Rapid Antigen Testing (RAT), Personal Protective Equipment
(PPE), educational courses and social distancing. The union asserted these measures
3
represented reasonable options that could have effectively been used by the employer
to balance the requirements of Directive 6 with the rights of the grievors to determine
their own medical treatment. The employer’s policy of mandatory vaccination went
beyond the requirements of Directive 6 and continued after Directive 6 expired. Directive
6 did not require employees to be vaccinated and did not require unvaccinated
employees to be excluded from the workplace. The union argued the employer should
have considered the use of RAT and other measures, as adequate to protect the
workplace and legally permissible alternatives to mandatory vaccination. The employer
failed to explain why the other protective measures did not cumulatively constitute a
reasonable alternative to mandatory vaccination and forced leaves of absence.
Employees were being subjected to RAT testing three times per week while, at the same
time, the compliance rate with respect to vaccinations was extraordinarily high, with only
.06 percent of employees opting not to receive the vaccines. In such circumstances, a
very small percentage of non-compliant employees did not pose a meaningful risk to the
workplace. There was no evidence to suggest that compliance would have been any
lower had the employer not instituted a forced vaccination policy.
[5] The union argued the employer had failed to properly balance the competing
rights of health and safety with the rights of employees to bodily integrity and to make
decisions with respect to their own medical care. Rather than allow for some reasonable
flexibility, the only options offered by the employer were mandatory vaccination or an
unpaid leave of absence. This stark choice was instituted despite the fact that it went
beyond the requirements of Directive 6 and the employer continued to enforce the policy
4
even after Directive 6 was revoked by the provincial government. The policy was also
enforced in an inflexible manner, in that employees who were working remotely and
employees who did not have contact with patients were subject to the same requirement
of mandatory vaccination. Forcing unvaccinated employees to take unpaid leaves of
absence subjected them to disproportionate penalties and the undue hardships of loss of
earnings, loss of benefit coverage and the loss of the continuation of careers. The union
asserted that, on balance, the policy of placing unvaccinated employees on unpaid leaves
of absence was unreasonable under the long-standing test in KVP. The grievors had a
right to bodily autonomy, which was a fundamental right. The employer had the tools to
balance the competing needs of the circumstances, but chose an unnecessarily aggressive
approach, beyond the requirements of Directive 6, and beyond what was reasonable. For
this reason, the union submitted the policy should be found to be improper, and the
grievors should be entitled to compensation for the losses they have incurred.
[6] In response to the employer’s submissions, the union submitted that employees
who were working from home were seldom required to attend the workplace. In
addition, the union argued the abatement of community transmission was not part of the
employer policy because had that been the case the employer would have provided RATs
to employees on leaves of absence. Union counsel insisted OPSEU was not seeking to
establish a lower standard of health and safety for its members, and that its aims were
consistent with the well-established jurisprudence that employer policies must
reasonably balance all relevant rights such as health and the right to personal control over
medical intervention. In this case, with such a high rate of compliance and with
5
alternative tools such as the RAT, PPE and so on, the employer had the scope to fashion
a more balanced and more reasonable policy.
[7] The union relied on the following authorities: KVP Co. (1965), 16 L.A.C. 73
(Robinson); Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331; Electrical Safety
Authority, [2022] CanLII 343 (Stout); Lakeridge Health, [2023] CanLII 33942 (Herman).
Employer Submissions
[8] The employer argued that the issue of unpaid leaves of absence in the context of
a mandatory vaccination policy has been litigated in at least two dozen cases, and the
outcome is a virtually unanimous view that, at least up until June 2022, such policies were
reasonable and valid in the face of the threat posed by COVID-19. The employer’s policy
was in place until March 29, 2022, and was thus well within the “window” of the virtually
unanimous arbitral authority on the subject. Given the considerable body of
jurisprudence, it was fair to say that the issues related to an unpaid leave of absence for
refusal to vaccinate had been fully and carefully canvassed. The employer submitted that,
although the union’s case was well presented, every submission made by the union has
been rejected by multiple arbitrators. The clear outcome of the jurisprudence is that the
balancing of interests in these cases falls in favour of the obvious health and safety
concerns about the risk of serious illness and death associated with COVID-19, particularly
with respect to the litigation such policies in the healthcare sector.
6
[9] The employer relied on the “precautionary principle” as being fundamental to the
jurisprudence in the COVID-19 cases, as set out in the jurisprudence. The employer
asserted that the union’s reliance on Directive 6 was a ‘red herring’ because that directive
established a minimum standard for workplaces. The vast majority of hospitals across the
province adopted a mandatory vaccination policy, which was not surprising given the
additional concerns with respect to the vulnerability and health of the individuals they
serve, as well as the crucial role such institutions played in responding to the pandemic.
Arbitrators have recognized that individuals have the right to “bodily autonomy”, and that
individuals have the right to choose not to get vaccinated. However, often there are
consequences for the exercising of rights that the individual must also accept, and in this
context one consequence was that non-vaccinated employees were subject to being
barred from entering the workplace.
[10] The employer relied on the following authorities: KVP Co Ltd, [1965] CanLII 1009;
Irving Pulp & Paper, [2013] SCC 34; Eatonville Care Centre Facility Inc, [2020] ONSC 2467
(CanLII); Coca-Cola Canada Bottling Limited, [2022] CanLII 25769 (Wright); The Toronto
District School Board, [2022] CanLII 22110 (Kaplan); Extendicare Lynde Creek Retirement
Residence, (Unreported, April 4, 2022, Raymond); Maple Leaf Foods Inc, [2022] CanLII
28285 (Chauvin); Alectra Utilities Corporation, [2022] CanLII 50548 (Stewart); Wilfred
Laurier University, [2022] CanLII 69168 (Wright); Regional Municipality of York, [2022]
CanLII 78173 (Raymond); Cameco Corporation, Port Hope Facility, [2022] CanLII 108947
(Chauvin); City of Toronto, [2022] CanLII 109503 (Herman); Lakeridge Health, [2023]
CanLII 33942 (Herman).
7
Conclusions and Decision
[11] There have been many reported arbitration decisions involving COVID-19
workplace policies. The issues raised by the union in this interim motion with respect to
the employer’s disciplinary response to violation of the COVID-19 policy have been
addressed in the principles established by the jurisprudence.
[12] The first principle to be derived from the cases is that this dispute is not about the
individual rights of the grievors in the face of the imposition of rules by some faceless
mass collective. Considerations of the rights of the grievors have to be balanced against
the employer’s legal obligations to protect the individual rights of all employees (including
the grievors) and the people they serve in the community. The employer had the
obligation under s. 25(2)(h) OHSA to take every precaution reasonable to protect the
health and safety of every person connected with the workplace.
[13] The second principle to be gleaned from the cases is that the employer’s policy
has to be assessed against the long-standing KVP test of reasonableness, not against
Directive 6. Directive 6 does not purport to define or direct CAMH management, or
others, on the details of COVID-19 policy in the workplace. Directive 6 required policies
to be put in place. The question of whether disciplinary measures in the employer’s
COVID-19 policy were reasonable is to be determined outside of the framework required
by Directive 6. Directive 6 did not purport to “occupy the field” with respect to COVID 19
workplace policies either explicitly or by implication. Rather, the details of policies were
8
left up to management. The issue is not whether the employer’s policy was “legally
adequate” with respect to Directive 6, as the union submitted, but whether it was
reasonable in all the circumstances of the employer’s response to the COVID-19
pandemic.
[14] The third principle, referred to as the “precautionary principle”, is set out in s.
25(2)(h) of the Occupational Health and Safety Act (OHSA), and elaborated upon in the
decision of the Ontario Superior Court in Eatonville/Henley Place, [2020] ONSC 2467
(CanLII), and other cases such as Coca-Cola, Central West LHIN, and City of Toronto. The
“precautionary principle” holds that the employer is obliged to take every precaution
reasonable to protect health and safety in the workplace, and this is so even when the
effectiveness of such measures cannot be established with scientific certainty. It is stating
the obvious to observe that the “precautionary principle” was readily applicable to the
circumstances of the COVID-19 pandemic, where the health risk being addressed spread
rapidly across the globe, and where vaccines were created relatively quickly. In these
circumstances, especially given the grave consequences of failing to stop the spread of
the virus, the best scientific evidence and medical advice clearly supported the conclusion
that vaccination constituted the surest method of avoiding the risk of death.
[15] The union submitted, in effect, that the right to bodily integrity obligated the
employer to rely on other methods to combat the virus. In my view, this would have
improperly compromised the health and bodily integrity of everyone in the workplace in
order to permit some employees to decline vaccination. As already stated, the
9
overwhelming weight of expert advice was to the effect that vaccination was the most
effective method of combating the COVID-19 virus. Arbitrators have accepted that
measures short of mandatory vaccination were not as effective, see Extendicare, and
Maple Leaf for example. The employer was managing a deadly pandemic in a healthcare
workplace and mandatory vaccination meant that non-compliant employees should not
be physically in the workplace. I do not accept the employer was obligated to “balance”
the rights of such employees when doing so would have endangered the lives of everyone
entering the workplace. Even a small increase in the risk of infection entailed the actual
danger of serious illness and death. The risk of doing the wrong thing was so serious that
it would have been irresponsible for the employer not to implement a mandatory
vaccination policy. Everyone entering the employer’s workplace had the right to do so
without unnecessarily being exposed to COVID-19. The alternative measures suggested
by the union (RAT, PPEs, social distancing, etc.) were important supportive methods for
controlling the virus, but did not offer, either individually or collectively, the level of
protection of mandatory vaccination. Anything less than mandatory vaccinations would
have meant a failure to take every precaution reasonable to protect health and safety
because it would have created a regime of reduced protection and higher risk at CAMH.
In my view, the employer acted reasonably in a circumstance where the outcome was a
matter of life or death. There can be little doubt that the mandatory vaccination policy
at CAMH, and those at other workplaces across the province, worked to save lives. Non-
compliant employees faced the difficult decision of accepting a vaccine that they did not
want or losing their jobs. While one can appreciate this might have been a hard choice,
it was the circumstances that created that choice, not an unreasonable policy.
10
[16] I do not accept that the high vaccination rate in the workplace in any way
undermined the reasonableness of the policy. High compliance did not mean there was
an obligation on the employer to open up the possibility of increased risk. Indeed, the
purpose of making vaccination mandatory would have been to obtain full compliance in
order to contain the virus to the maximum extent possible. High compliance with the
policy did not relieve individual employees of the obligation to comply with that goal. As
Arbitrator Goodfellow stated in Central West LHIN, “free-ridership” has no place in the
KVP analysis of reasonableness.
[17] The practice of placing non-compliant employees on unpaid leaves of absence has
been considered and approved in a number of cases, including Lakeridge, Central West,
and others. There was nothing inherently unreasonable about the employer removing
the risk of non-compliant employees from the workplace, while providing a period of
reflection for such employees to consider the consequences of non-compliance. It would
be unreasonable to expect the employer to retain such employees on unpaid leaves
indefinitely, for reasons that are “plain and obvious” as Arbitrator Goodfellow stated in
Central West, such as the employer’s need to recruit new employees to fill the positions
previously held by those employees who declined vaccination. As Mr. Jeffries pointed
out, the earliest case suggesting a relaxation of the requirement for unpaid leaves of
absence was effective in late June 2022, see Wilfred Laurier. It was only at that point that
the most severe danger associated with the pandemic seemed to begin to abate and the
analysis of the balancing of interests began to shift.
11
[18] The union challenged the right of the employer to enforce the mandatory
vaccination policy for employees who were working remotely and those who reported to
the workplace but did not have contact with patients. The employer relied on right to
require that all employees who worked remotely were subject to report to the workplace
on short notice depending on the needs of the institution. With respect to employees
who did not have patient contact, I do not see how the policy would be unreasonable
when applied to employees attending the worksite but not having contact with patients.
Such individuals would be physically on the premises and could spread the virus to others
even with minimal contact. The argument can be made that such employees presented
a reduced risk due to limited contact with others, but it was not unreasonable for the
employer to seek to eliminate even such reduced risk in the face of a deadly virus.
[19] The union’s interim motion with respect to the reasonableness of unpaid leaves
of absence is dismissed.
_________________________________
Barry Stephens, Arbitrator
January 30, 2024