Background
On Sept. 1, 2021, the OCDSB’s Board of Trustees (Trustees) unanimously passed a motion requiring that staff work collaboratively with Ottawa Public Health (OPH) to develop a protocol requiring that employees be fully vaccinated against COVID-19, subject to the Board’s duty to accommodate under the Human Rights Code. Notably, this proposed protocol went over and above the requirements outlined by the Ministry of Education (MOE). Indeed, while the MOE required Board staff to disclose their immunization status, vaccination was not mandated. Instead, under the MOE’s standards, unvaccinated staff were required to undergo regular Rapid Antigen Test (RAT) testing.
Prior to passing their Sept. 1, 2021 motion, the Trustees held a number of public meetings in conjunction with OPH. Board staff were advised that one of these meetings would “include a discussion about vaccine policies.” Subsequent to the Sept. 1, 2021 motion, the Board met with bargaining unit representatives (including “the Federation” which represented elementary and occasional teachers at the OCDSB) in which a draft protocol was shared. The Federation’s comments were restricted to “implementation issues” and did not touch on any “substantive feedback.”
The resulting Protocol was issued on Sept. 20, 2021 and was only lifted in March 2022. Absent a human rights exemption, the policy did not allow for RATs as an alternative to vaccination. Therefore, unvaccinated employees who did not have a code-based exemption were required to get their first dose of the COVID-19 vaccine by Sept. 30, 2021. This deadline was extended to Oct. 7, 2021. Failure to comply meant being placed on administrative leave without pay. Despite this deadline, some un-exempted and partially vaccinated staff continued to work in person — with the condition of undergoing RATs — until the end of December. Moreover, individual circumstances allowed for timeline extensions.
Ultimately, 16 contract teachers were placed on leave without pay. Of these, seven requested to be added to the Ottawa-Carleton Virtual Schools (Virtual Schools) list of occasional teachers, five of which received received Virtual Schools assignments of varying durations. Two long-term occasional teachers had their assignments terminated, and a further 34 occasional teachers were restricted to accepting online work assignments only. An additional 292 occasional teachers did not complete the vaccine attestation as required by MOE’s Immunization Disclosure Policy.
The arbitration
The Arbitrator was tasked with addressing two issues: the first relating to accommodating the small number of unvaccinated teachers who were not granted a human rights exemption. The second was whether the protocol as a whole was a reasonable exercise of management rights, especially to the extent that they diverge from the MOE’s policy. The particular stringencies of the protocol under dispute included the fact it:
- did not allow for RAT as an alternative to vaccination;
- placed teachers on an indefinite administrative leave of absence, only allowing them to accept virtual work assignments and/or apply for opportunities at the Virtual Schools; and
- removed occasional teachers from long-term occasional in-person assignments and restricted them accepting in-person work assignments.
Importantly, both parties agreed on the safety and efficacy of the COVID-19 vaccines and that vaccination is the most effective strategy to reduce the transmission of COVID-19 in schools. Rather, it was the Board’s insistence on a hardline vaccine mandate going beyond what was required by the MOE that fuelled the dispute.
The decision
Arbitrator Flaherty concluded that — despite their small number — the Board was not required to accommodate un-exempted employees who remained unvaccinated. Similarly, Arbitrator Flaherty ruled that the vaccine mandate fell within the gambit of the Board’s management rights and was a proper application of the precautionary principles. Lastly, the fact the Board shifted from their original position on RATs and opted to not use a decision matrix was not seen as an issue.
Small number of unvaccinated teachers does not create an obligation to accommodate
The mere fact that there were very few teacher who remained unvaccinated did not create a duty to accommodate them. On this point Arbitrator Flaherty noted the Board’s submissions that the low number unvaccinated teachers may be a consequence of the protocol itself. However, she also acknowledged that such an exercise is speculative, and that “absent a legitimate human rights ground, the Board had no obligation to accommodate employees who decided not to be vaccinated.”
Management rights
In determining the appropriate scope of management’s unilateral rule-making authority under a collective agreement, Arbitrator Flaherty referenced Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP (KVP). Under KVP, a unilaterally imposed policy must meet the following criteria:
- It must not be inconsistent with the collective agreement.
- It must not be unreasonable.
- It must be clear and unequivocal.
- It must be brought to the attention of employees affected before the company can act on it.
- The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
- Such rule should have been consistently enforced by the company from the time it was introduced.
As Arbitrator Flaherty noted, only conditions b) and f) were in dispute. Moreover, she observed that she had the benefit of a significant amount of jurisprudence applying KVP to compulsory vaccination policies. Of the established case law, context, the precautionary principle and balancing employee rights with the risk of harm, emerged as the guiding principles.
Context, precautionary principle, and rights balancing
Contextually, Arbitrator Flaherty noted the importance of in-person instruction for children and the fact that children were initially ineligible for vaccination thereby making staff vaccination all the more prescient.
On the issue of balancing interests, Arbitrator Flaherty reasoned that an employee’s personal belief were less significant than the Board’s interest in ensuring schools remained open.
On the precautionary principle front, Arbitrator found the Boards decision to go beyond the MOE was warranted. As she noted, the Board did not require scientific certainty on RATs in order to reasonably decide against using them. Instead, the Board action was to be evaluated based on the information that they were equipped with at the time of making their decision, which given the stakes, was viewed as reasonable.
Shifting consequences not unreasonable
Furthermore, Arbitrator Flaherty was not persuaded that the Board’s initial contemplation (and subsequent rejection) of RATs reflected an unreasonable exercise of management rights. Given the inherent uncertainty created by the pandemic, modification to the Board’s Protocol over time was seen as reasonable.
Board was not required to use a decision matrix
In the strikingly similar decision of The Toronto District School Board and CUPE, Local 4400 (Re COVID-19 Vaccine Procedure) (TDSB), a decision matrix was used to determine the fate of unvaccinated employees as opposed to the automatic leave of absence employed in this case. However, Arbitrator Flaherty distinguished the case at hand, as the TDSB decision involved a bargaining unit representing “almost 15,000 employees working in a range of classifications across the school board.” By contrast, this decision only dealt with “teachers and occasional teachers.” This, combined with the fact that the consequence of non-compliance was consistent (with the only variable being timing), lead Arbitrator Flaherty the decision matrix was not necessary.
On this issue, the Federation argued that:
- The Board failed to review the protocol regularly; and
- The Board’s decision to rescind the protocol during the more transmissible Omnicron (as opposed to the less transmissible Delta strain) demonstrated that the protocol could have been lifted earlier.
Arbitrator Flaherty found that the measures were reasonable at the time they were applied, and could not be judged on the basis of hindsight.
Commentary
This decision, combined with the TDSB decision, provide compelling authorities for a school board’s right to impose mandatory vaccination policies in the school setting. As a caveat, both decisions stress the unique circumstances of the pandemic. Put simply, when dealing with diseases that are not seen as warranting extraordinary measures, management’s rights may not be a sufficient basis for unilaterally imposing a vaccine mandate. In addition, both decisions emphasized the fact that vaccines were unavailable for children. The fact that the COVID-19 vaccines are now available for children may change the calculus.
Nevertheless, to the extent that COVID-19 variants continue to mutate or other diseases become an issue, school boards can be rest assured that tribunals will likely be deferential to management rights in an effort to protect the health and safety of students and school staff.
