In Ontario Power Generation and The Power Workers’ Union, an arbitrator considered issues relating to an employer’s COVID-19 “vaccination or test” policy. The arbitrator, in addition to upholding many aspects of the policy, expressed his view that an employee’s dismissal for cause (for failure to comply with testing requirements) could be upheld at arbitration.
On September 23, 2021, Ontario Power Generation (the “Employer”) implemented a “vaccination or test” policy (the “Policy”). The Policy provided that:
- All employees, including unionized employees, who were unvaccinated or failed to disclose their vaccination status must undergo testing once per week for an initial orientation period, followed by twice per week;
- Unvaccinated employees must upload testing materials and results through an online portal on their own time, and would not be paid for time spent testing and uploading information. Additionally, unvaccinated employees must agree to pay the Employer $25 per week to cover the costs of running and administering the testing program through a deduction from their regular pay, or else procure their own two test kits per week;
- Employees who refused to participate in the testing program would be placed on an unpaid leave of absence;
- Employees who maintained their refusal to participate after a period of six weeks would be dismissed for cause; and
- Unvaccinated employees would be barred from accessing the on-site gym.
The Power Workers’ Union (the “Union”) filed a grievance with respect to various issues affecting unvaccinated employees, including the Employer’s ability to place them on an unpaid leave, the requirement for such employees to pay for testing costs, and the revocation of gym access. Notably, the Union did not object to the general requirement for unvaccinated employees to take part in testing.
The arbitrator made the following findings:
Reasonableness of Testing Requirement
The arbitrator confirmed that testing unvaccinated employees is reasonable in the circumstances of the COVID-19 pandemic and meets the Employer’s obligation to take every precaution reasonable in the circumstances for the protection of its workers, per Ontario’s Occupational Health and Safety Act [OHSA].
Costs and Compensation Related to Testing
The arbitrator balanced the interests of the Employer and the Union, and concluded that while testing costs should be paid by the Employer, the Employer should not be obligated to compensate employees for time spent outside of normal working hours in self-administering the test.
In concluding that the Employer should not bear the costs of time spent by employees testing at home, the arbitrator noted the benefits of at-home testing, including that employees could receive results before entering the workplace, and would take relatively less time taking the test at home as opposed to the workplace. The arbitrator also noted that to compensate employees for the time involved in testing outside of the workplace could act as a disincentive for such employees to get vaccinated.
The arbitrator found that the Employer’s duty under the OHSA to take every reasonable precaution to keep employees safe reasonably included barring unvaccinated employees from the on-site gym, given that the gym is a high-risk area for the transmission of COVID-19.
Unpaid Leave of Absence
The arbitrator found that it was reasonable to place unvaccinated employees who refused to test on an unpaid leave, and that doing so would not breach the disciplinary process set out in the collective agreement. In providing his reasons, the arbitrator stated that unlike other occasions when the Employer sends someone home pending potential discipline, in these circumstances, it is completely within the control of employees to decide when to return to work, as all they would need to do is to agree to comply with testing requirements. The arbitrator found that the consequence of an unpaid leave was “a sensible and necessary part of a reasonable voluntary vaccination and testing program”.
Termination for Cause
Additionally and notably, the arbitrator expressed his preliminary view that employees who are dismissed for cause for choosing not to be tested would very likely find the termination of their employment upheld at arbitration. In the arbitrator’s words: “in the context presented by this global pandemic, when lives of co-workers are at risk, unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they present to their co-workers… It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, employees who refuse testing will likely will have made a decision to end their career”.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.