Arbitrator Finds University’s Vaccination Policy to be Reasonable

On July 22, 2022, Arbitrator Wright released a preliminary award, Wilfrid Laurier University v United Food and Commercial Workers Union, in which he found that the University’s mandatory vaccination policy (Policy) was reasonable. In so finding, he cited the fact that the University implemented the Policy in accordance with the instructions and advice issued by the Office of the Chief Medical Officer of Health (OCMOH). He also noted the specific context of the bargaining unit, in which all members are required to attend at the workplace and work in close proximity to one another.

Background

On August 13, 2021, the University announced that all students, staff and faculty would be required to be fully vaccinated with an approved COVID-19 vaccine in order to be in-person at any of the University’s locations starting in the fall of 2021.

The OCMOH subsequently issued instructions to the university sector, which required universities to establish, implement and ensure compliance with a COVID-19 vaccination policy. As per the OCMOH instructions, such a policy would need to include a statement that university employees, staff, contractors, volunteers and students who attend campus must: (a) provide proof of full vaccination against COVID-19, or (b) a documented medical reason for not being fully vaccinated against COVID-19, or (c) proof of completion of an educational session about the benefits of the COVID-19 vaccination.

The instructions further stated that a university may choose to remove the option regarding proof of completion of an educational session, such that individuals who were unvaccinated without a valid medical exemption would not be offered regular antigen testing as an alternative to vaccination and would therefore not be permitted to attend the university in-person.

In accordance with its August 13th announcement and the OCMOH instructions, the University implemented its Policy on September 22, 2021. Based on the high-risk setting of the University, the risks associated with the COVID-19 variant at the time, as well as advice provided in consultation with the Chief Medical Officer of Health regarding the effectiveness of vaccination in reducing the spread of COVID-19, the University decided not to include the educational session option pursuant to, and as permitted by, the OCMOH instructions.

As a result, the Policy required that existing employees be fully vaccinated by October 22, 2021 to access University property or conduct University work in-person, unless they had an approved exemption. Effective October 23, 2021, non-compliant employees were placed on an unpaid leave of absence.

Thereafter, on March 1, 2022, the Chief Medical Officer of Health issued a memo to the university sector confirming that the OCMOH instructions were revoked. In this memo, the Chief Medical Officer of Health stated that he “wholeheartedly support[ed]” post-secondary institutions which may decide to continue their COVID-19 vaccination policies for the remainder of the academic term and beyond. The University decided to keep its Policy in force until May 1, 2022, at which time it was paused.

The Issues

The Union filed two individual grievances on behalf of members who alleged the collective agreement had been breached, and the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms violated when they were denied an exemption from the University’s Policy.

Before considering the merits of the individual grievances, the University and the Union agreed that the reasonableness of the Policy must first be decided. As a result, the only issue before Arbitrator Wright was whether, under the framework established in Lumber & Sawmill Workers’ Union, Local 2537 v KVP Co., the Policy was reasonable.

The Decision

The Arbitrator concluded that the Policy was a reasonable exercise of management rights in accordance with the KVP framework. In reaching this conclusion, the Arbitrator considered two questions: 1. whether it was reasonable for the University to remove the rapid antigen testing option from its Policy, and 2. whether it was reasonable for the University to extend the operation of its Policy to May 1, 2022, two months after the OCMOH instructions had been revoked.

On the first question, the Arbitrator noted the pressing health concerns that universities and other post-secondary institutions faced during the pandemic, and more specifically, the fact that there had been three COVID outbreaks on the University campus between October 2020 and August 2021. Given this context, the Arbitrator found it “entirely reasonable for the University to have removed the option of rapid antigen testing from its Policy in favour of one requiring vaccination.” He also cited the expert evidence that was considered by Arbitrator Kaplan in Toronto District School Board v CUPE, Local 4400, which led Arbitrator Kaplan to conclude that rapid antigen tests are not a viable alternative to vaccination in reducing the risk of becoming infected and spreading COVID-19.

In considering the Policy on its own terms, the Arbitrator held that “it struck a reasonable balance between an employee’s interest to privacy and bodily integrity, and the University’s in maintaining the health and safety of the workplace and campus.”

On the issue of whether it was reasonable to extend the operation of the Policy past March 1, 2022, the Arbitrator stated it was entirely reasonable to do so, highlighting the fact that the University based this decision on consultation with local public health units, other universities and direction from the Chief Medical Officer of Health.

Arbitrator Wright also considered the recent FCA Canada Inc. v Unifor, Locals 195, 444, 1285 decision in which Arbitrator Nairn concluded that an employer’s mandatory two-dose vaccination policy was no longer reasonable. He agreed with the University that FCA is distinguishable from the case at hand on two grounds:

1. Nothing in Arbitrator Nairn’s decision indicates that she believed there was sufficient evidence for her to conclude that the policy was unreasonable from March 1, 2022 to May 1, 2022, which is the relevant period in this matter, and
2. Arbitrator Nairn’s reasoning was specific to a policy requiring two doses of vaccine, whereas the University’s Policy did not define “fully vaccinated” to mean two doses of vaccine, rather it was tied to ongoing public health pronouncements.

Arbitrator Wright also noted that whereas the employer’s policy in FCA did not include a “periodic review” provision, the University’s did.

Takeaway

This decision is another example of the general acceptance by arbitrators of vaccination policies. While vaccination policies will continue to be assessed on a case-by-case basis, employers should take note of the fact that the arbitrator in this case distinguished the University Policy with that of the employer’s mandatory vaccination policy in FCA.

The university in this decision was represented by Hicks Morley’s Amanda Lawrence-Patel and Jamie Burns.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ?