On November 12, 2021, in Ontario Power Generation and The Power Worker Union (OPG), Arbitrator John C. Murray considered issues relating to a Vaccinate or Test Policy (Policy) that provided, among other things, that if employees refuse to test, they will be placed on an unpaid leave of absence for a maximum of six weeks and terminated thereafter.  Although he was not required to consider whether an employee’s termination of employment due to their refusal to be tested would be upheld, Arbitrator Murray took the opportunity to state that it would “very likely” be upheld at arbitration. 

Background

OPG’s Policy required that all staff, including unionized employees, be vaccinated or test.  Those who identified as unvaccinated or refused to disclose their vaccination status (Unvaccinated Employees), were required on their own time to:

• Self-administer COVID-19 rapid antigen tests twice weekly, with 48 hours between tests;

• Video-record themselves self-administering the test, or have a third-party record them;

• Take a photo of the test result;

• Upload the video and photo through an online portal; and  

• Pay $25 to OPG to cover the costs of the testing program and portal, and agree to have this amount deducted from their pay, or, if unwilling to agree to the deduction, procure two of their own test kits per week, and follow the same procedures listed above. 

Pursuant to the Policy, employees who refuse to test would be placed on an unpaid leave of absence for a maximum of six weeks.  If the employee did not change their mind and agree to participate in the testing program after a six-week period, their employment would be terminated for cause.

In October 21, 2021, OPG informed The Power Worker Union (PWU) that, effective November 24, 2021, consistent with public health directives, employees who wish to use OPG’s on-site gym must be fully vaccinated and provide their supervisor with confirming data.

The Grievance

The PWU filed a grievance in which it argued:

• It was unreasonable for the costs of COVID-19 testing (time involved in test administration and the expense of such testing) to be placed on the employee; these costs should be borne by OPG (Issue #1); and

• As Article 2A.3 of the collective agreement (CA) expressly provided that, “Disciplinary penalties resulting in a suspension without pay will not be imposed until a final decision, (agreement between Union and Management, or an arbitrator’s judgment) has been reached,” OPG was not permitted to place employees on an unpaid leave of absence pending completion of this discipline process (Issue #2).

Finally, PWU sought a declaration that certain employees for whom maintaining physical fitness was a condition of employment should be permitted to continue using the gym upon providing proof of a negative COVID-19 test and so long as they followed other appropriate safety protocols.  PWU stated that the vaccination requirement for gym use was unenforceable because it was inconsistent with the mid-term agreement (Mid-Term) between the parties, which was part of the CA (Issue #3).

The Arbitrator’s Award

Arbitrator Murray began his Award with the observations that section 25(2)(h) of the Occupational Health & Safety Act (OHSA) requires an employer to take every precaution reasonable in the circumstances for the protection of a worker, and testing unvaccinated employees is prima facie reasonable.

Issue #1: Costs of COVID-19 Testing

On Issue #1, Arbitrator Murray granted an order to the PWU that required OPG to pay for tests for unvaccinated employees.  He refused, however, to order OPG to compensate employees for time spent administering the rapid antigen test outside working hours. 

Arbitrator Murray favoured self-administered testing on the employee’s own time without compensation for the following reasons:

• The employer will know about a positive test result before the employee reports to work, allowing it to act immediately to isolate the employee before they enter the workplace;

• It is more efficient as results can be obtained by employees who are not in the workplace in 15 minutes, as compared with 30-45 minutes for an employee to leave their post at the workplace, take the test, and return;

• Compensating employees for time spent outside the workplace administering tests may be a disincentive for employees to get vaccinated and be inconsistent with “OPG’s rational objective to have as many employees vaccinated as possible.”    

Issue #2: Placing Employees on Unpaid Leave

The PWU’s grievance on Issue #2 was dismissed when Arbitrator Murray decided that OPG may place employees on an unpaid leave of absence because Article 2A.3 of the CA does not apply in the specific context of this situation.  He stressed that, unlike other contexts in which OPG sends an employee home pending discipline, here it is within the employee’s control to decide when to return to work; they must only change their mind and agree within the six-week period to participate in the testing program.  Furthermore, Arbitrator Murray emphasized the minimally intrusive nature of the test; that it has been endorsed as safe and effective by the Chief Medical Officer of Health and other authorities; and that by refusing to participate in the testing an employee is refusing to demonstrate that they do not present an unnecessary risk to their co-workers “during a global pandemic that has cost 29,000 lives in this country and at least 5 million world-wide.”  Finally, he stated that an employee’s termination of employment due to their refusal to be tested is “very likely” to be upheld at arbitration. 

Issue #3:  Gym Use

Stating that there were no concerns about a global pandemic when the parties entered into the Mid-Term, Arbitrator Murray emphasized that gyms are high-risk areas for transmission of COVID-19 and that Ontario requires patrons of public gyms to be vaccinated.  He then stated that the employer’s obligation under s. 25(2)(h) of OHSA to take every precaution reasonable in the circumstances for the protection of the worker “trumps the Mid-Term,” and emphasized that although the gym is not public, the same logic that caused Ontario to require patrons of gyms to be fully vaccinated “is applicable here.”

Bottom Line for Employers

The OPG arbitration award is the first to consider a policy that provides for a vaccinate-or-test alternative, and whether vaccination may be required for use by employees of an employer’s on-site private gym.  Although the award is not binding and other arbitration awards pertaining to such policies are expected, OPG is an influential first award that provides encouragement to employers.  OPG indicates that employers that implement vaccinate-or-test policies will be required to pay for the tests; however, they will not be required to compensate employees for time spent administering the test outside working hours. Furthermore, OPG suggests that employers will be permitted to place unvaccinated employees who refuse to test on an unpaid leave of absence.  Moreover, although he was not required to decide this issue, Arbitrator Murray took the opportunity in OPG to provide preliminary encouragement to employers when he stated that an employee’s termination of employment due to their refusal to be tested is “very likely” to be upheld at arbitration.  Finally, OPG suggests that in the context of the global COVID-19 pandemic, it is reasonable for employers to require employees who wish to utilize a private on-site gym to be vaccinated as to do so is consistent with an employer’s obligation under s. 25(2)(h) of OHSA to take every precaution reasonable in the circumstances for the protection of the worker.   

Employers that are considering implementing any type of vaccination policy, including a vaccination-or-test policy, are also strongly encouraged to seek the guidance of experienced employment counsel before doing so.

We will follow any other arbitral awards or judicial decisions that consider vaccination policies in unionized and non-unionized settings. Updates will be provided as these cases are decided.