Background
TDSB’s mandatory vaccination policy required all employees with direct contact with staff or students at a TDSB workplace to be fully vaccinated (two doses) against COVID-19. The TDSB implemented the policy on Sept. 14, 2021. Employees were required to provide evidence of compliance with the policy by Nov. 1, 2021 or establish they had a valid medical or Human Rights Code exemption. Students and their families were not subject to the policy. Employees who did not disclose their vaccination status by the deadline (which was extended to provide further compliance opportunities) and employees who did not become fully vaccinated within prescribed timelines were to be placed on non-disciplinary leaves of absence without pay.
In October and November 2021, CUPE Local 4400 wrote to the TDSB’s Director of Education to request that the policy be reconsidered, pointing out the hardship that unpaid leaves of absences would cause and observing that neither the Minister of Education nor Ontario’s Chief Medical Officer had called for mandatory vaccination. The union also argued that the policy was unreasonable, since being fully vaccinated was not effective against Omicron and the policy was never amended to require a booster shot. The union’s position was that rapid antigen tests were effective in reducing the likelihood of introducing infection into a school setting if the testing protocol and other mitigation protocols were followed. As a result, the union suggested that Local 4400 members be accommodated through frequent testing and other measures.
The TDSB declined the request, but it did grant temporary exemptions to approximately 300 members because of staffing requirements. In addition, a smaller number of unvaccinated employees remained at work, with testing obligations, pending decisions on their exemption requests for medical and Human Rights Code reasons.
On March 10, 2022, following the second and final day of the arbitration proceedings, the TDSB Board of Trustees passed a resolution rescinding the mandatory vaccination policy effective March 14, 2022.
The arbitration decision
There were two issues before Arbitrator Kaplan:
- Did the policy infringe section 7 of the Charter and, if so, could it be saved by section 1?
- Was the policy reasonable?
Both parties submitted expert reports on the merits of the policy and the viability of alternatives. Although the experts agreed on the efficacy of vaccination at keeping COVID-19 out of schools, the union’s expert report concluded that rapid testing was a viable alternative to mandatory vaccination. The TDSB’s expert disagreed, opining that daily rapid tests were not an effective alternative or substitute to mandatory vaccination in preventing or reducing workplace transmission.
Section 7 of the Charter
Arbitrator Kaplan concluded that the policy did not breach section 7 of the Charter, finding that section 7 protects an individual’s right to decide, including to decide whether or not to be vaccinated. The Policy did not require mandatory vaccination, mandate a medical procedure or seek to impose one without consent, and therefore did not violate anyone’s life, liberty or security of the person. As Arbitrator Kaplan emphasized, “Employees are not prevented in any way from making a fundamental life choice.” Arbitrator Kaplan noted, however, that “Section 7 does not insulate a person who has chosen not to be vaccinated from the economic consequences of that decision.”
In addition, he concluded that there had been no violation of the principles of fundamental justice, and the policy was not arbitrary (“There was a clear connection between attestation and full vaccination and the achievement of the stated objective…a return to safe and sustained in-school learning”), overbroad (“it was tailored and nuanced”), or disproportionate (“The consequences of non-compliance are purely economic and they are proportionate to the objective of preventing the transmission of COVID to employees and students in TDSB schools”).
Management rights
Arbitrator Kaplan disagreed that the policy was an unreasonable exercise of management rights, as argued by the union. The mandatory vaccination policy was consistent with the TDSB’s requirements under the Occupational Health and Safety Act (OHSA), as “expert evidence is that vaccination was the number one and best method of reducing the contraction and spread of COVID-19.” The requirement that employees attest to their vaccination status was a necessary corollary of this and no complaint has been raised that personal information has been anything but properly safeguarded and protected.
In assessing the reasonableness of the policy, Arbitrator Kaplan also applied the test in KVP & Lumber/Sawmill Workers’ Union, which requires that a management rule or policy:
- Not be inconsistent with the collective agreement;
- Not be unreasonable;
- Be clear and unequivocal;
- Be brought to the attention of employees before the employer can act upon it;
- Inform affected employees that breach could result in discharge if the policy was being used as foundation for discharge; and
- Must be consistently enforced.
Arbitrator Kaplan found that the policy met all of the KVP requirements. The TDSB was allowed to promulgate rules and policies, and there was nothing in any of the applicable collective agreements that restricted this management right.
The policy was not unreasonable: based on the expert evidence, being fully vaccinated was "a reasonable rule and appropriate condition of employment for employees who wished to attend at work" especially when compared to "the self-evidently fallible RAT regime proposed by the Union."
The policy was also clear and unequivocal: the TDSB explained it to employees and so too did the union. There is no evidence that anyone was under any misunderstanding about what the policy required in terms of vaccine attestation and becoming fully vaccinated. Finally, the policy was consistently applied. By introducing a regime to allow for exemptions for essential workers and by allowing employees with human rights claims to continue to work under a testing regime, the policy was not being inconsistently applied but was, rather, being applied in a careful and nuanced fashion.
The grievances were dismissed.
Commentary
Since the decision was released in March 2022, the conclusion that mandatory vaccination policies are reasonable and enforceable has been relied on in numerous other arbitration decisions in Ontario. Mandatory vaccination policies satisfy an employer’s obligation under the OHSA to take every reasonable precaution to protect the health and safety of its employees so long as they comply with the Human Rights Code. Arbitrator Kaplan’s conclusion that rapid antigen tests are not necessarily a viable alternative to vaccination in the context of educational facilities, in particular, has been referred to by other arbitrators, including Arbitrator Mark Wright in his decision in Wilfred Laurier University and UFCW (Lemon), Re, 2022 CanLII 69168 (ON LA).
However, it is also worth noting that both Arbitrator Kaplan’s decision and subsequent arbitration decisions dealing with mandatory vaccination policies have emphasized the importance of context in determining whether these policies are reasonable. This case was decided during the emergence of the highly transmissible Omicron variant of COVID-19 and before vaccines had been approved for children in Canada. Had the policy been challenged at a different time, it is possible that Arbitrator Kaplan would have reached a different result. In other words, the question of validity must be considered based upon the situation as it existed at the time. As the COVID-19 pandemic continues to evolve, there is no guarantee that mandatory vaccination policies will continue to be upheld in the future in accordance with this decision. In implementing mandatory vaccination policies, employers should assess their own circumstances and determine what is proportionate and reasonable to meet their obligations under the OHSA.
