Ontario, Canada Arbitrator Denies Union’s Cease and Desist Application Regarding Employer’s Mandatory COVID-19 Vaccination Policy

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In Canada Post Corporation and Canadian Union of Postal Workers (CUPW), Arbitrator Kevin Burkett denied CUPW’s cease and desist application filed under the collective agreement (CA), which arose when the employer imposed a mandatory vaccination policy.  Under the CA, the criteria for issuing a cease and desist order were: (a) the balance of convenience must favour the granting of such an order; and (b) without such an order, the consequences of the contravention would be severe and could not be corrected or compensated adequately, i.e., the harm would be irreparable.  Arbitrator Burkett decided that the harm instead was reparable and the balance of convenience rested with the employer. 

Background

The employer announced that effective November 26, 2021, pursuant to its mandatory vaccination policy, all employees would be required to attest to having been fully vaccinated or partially vaccinated.  Employees who attest to being unwilling to be fully vaccinated would be restricted from working, including remotely, and placed on leave without pay. If the employee was not actively working, they would be required to provide such attestation on the expected date of their return.

As an alternative to the mandatory vaccination policy for those unwilling to be vaccinated, CUPW proposed that they undergo a self-administered antigen test prior to each shift; this, CUPW argued, would provide a high degree of certainty that they would not be coming to work infected and satisfy the health and safety concerns.  Moreover, CUPW noted this is the same approach that was proposed by the employer before the federal government directed all Crown corporations to impose a vaccine mandate. This requirement would also apply to those who were willing to be vaccinated but had to wait for their second dose.  As well, CUPW stressed, “for many employees the threat of withholding income effectively removes any real choice and forces them to become vaccinated, an irreparable event.”

CUPW argued that:

  • Given the option of daily rapid testing, the vaccine mandate and its consequence tilted the balance of convenience in its favour; and
  • Given the coerced invasion of bodily privacy, the harm would be irreparable.

Decision

Arbitrator Burkett emphasized that his decision would not speak to the merits and it would address only the narrow issues pertaining to whether a cease and desist order should be granted.   

When he considered whether the harm was reparable, Arbitrator Burkett accepted the definition of harm adopted by the court in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658 (discussed in detail here), where the court stated the harm was:

…being placed on unpaid leave, or being terminated from employment, if they remain unvaccinated.  They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other.

Fundamentally, I do not accept that the TTC’s vaccine mandate policy will force anyone to get vaccinated.  It will force employees to choose between two alternatives when they do not like either of them.  The choice is the individual’s to make.  Of course, each choice comes with its own consequences; that is the nature of choices. 

Upon considering whether the harm to Canada Post’s employees was reparable, Arbitrator Burkett stated:

…the harm in this case is harm that can be remedied by means of compensation, the restoration of seniority of seniority, etc. if a determination is made on the merits that the imposition of the mandatory vaccine policy constitutes an improper exercise of managerial discretion under the collective agreement.  It is reparable harm.

In the body of his decision, Arbitrator Burkett summarized the evidence provided by two expert witnesses who were called, one by the employer and the other by CUPW.  The evidence, set out below, is highly supportive of mandatory vaccination as a strategy to reduce the transmission of COVID-19 in the workplace, and indicates that a rapid antigen test is not as effective:

  • Vaccination is safe and effective;
  • There is “significantly lower” risk of becoming infected with COVID-19 if a person is vaccinated;
  • Vaccination represents the most effective strategy to reduce transmission in a workplace such as Canada Post;
  • Rapid antigen testing is a better diagnostic test than screening tool;
  • Rapid antigen testing cannot be considered equivalent to vaccination as a means of reducing transmission;
  • The ideal frequency of testing is unknown and early infection might not be detected with rapid antigen testing; and
  • The sensitivity of a rapid antigen test might be compromised if conducted by an untrained employee and not by a laboratory or health care professionals. 

This evidence had a distinct impact on Arbitrator Burkett’s decision.  In determining where the balance of convenience lies, he emphasized the relevance of the efficacy of the alternative means of accomplishing the necessary health and safety objectives.  Notably, he stated, “… it is clear on the evidence that the most efficacious means of accomplishing the necessary health and safety objectives is through mandatory vaccination.”  Arbitrator Burkett then decided that for the narrow purpose of deciding whether or not to grant the injunctive relief sought by the CUPW, the balance of convenience rested with the employer, “… because a cease and desist order would result in an added risk to employees and the public, however small, of severe illness.”

Bottom Line for Employers

Canada Post Corporation and CUPW is another decision that demonstrates the difficulty a union will face if it attempts to get an injunction to halt the implementation of a mandatory COVID-19 vaccination policy for employees.  Even before an arbitrator, the weight of authority does not favour employees, although context is a factor that arbitrators will consider. 

Canada Post Corporation and CUPW is notable for Arbitrator Burkett’s adoption of the view expressed by the court in TTC that a mandatory vaccination policy does not force an employee to get vaccinated. Rather, such a policy forces them to choose between unwelcome outcomes, i.e., being vaccinated and having no income. The decision is also notable because it is the first reported arbitral decision related to a mandatory vaccine policy in which the parties called expert evidence regarding COVID-19 vaccines and their efficacy in controlling the transmission of the virus relative to other measures such as rapid antigen testing. The evidence confirmed that vaccination is the most effective strategy to reduce transmission in workplaces, which is a fact that strongly indicates that mandatory vaccination mandates are a reasonable exercise of management rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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