Legal Analysis of Mandatory Vaccine Policy and Antigen Testing Amid Covid-19
In this post, we'll talk about recent cases and arbitration decisions regarding mandatory vaccine policy and antigen testing. Continue reading to learn more.
Topics Will be Covered in This Post:
1. Mandatory Antigen Testing
Antigen testing is a hot topic recently as many companies are mandating antigen testing at the workplace. The impact of a workplace policy on worker rights must be weighed in the balance against the actual benefit to the employer of that policy.
The Courts have repeatedly recognized that invasions of privacy give rise to a unique form of harm, both through the loss of control over ones’ personal information (in this case bodily fluids and breath samples that may also contain highly personal information), but also through subjecting the individual to the process through which that personal information is obtained.
A balancing test is use to analyze the reasonableness of the requirement.
It would be permissible for an employer to mandate antigen testing across its workforce only where it can show that the benefit of antigen testing in the workplace outweighs the harm to an employee having to undergo an unwanted and coerced medical procedure against their piracy rights.
Please read this article that talks about the antigen testing in detail:
Who Pays for Antigen Testing?
If antigen testing is necessary to protect public health and safety, then next logical question to ask is whether or not the employer who imposes such testing unilaterally to its employees SHOULD pay for it?
A similar yet equally important question to ask is whether or not the employees is entitled to bill their employers for the time it takes for them to administer such antigen testing? After all, it is the employees who are being coerced unilaterally into such medical testing against their will.
Arbitrator Murray gave a definitive answer to that question in the Matter of Arbitration between Ontario Power Generation and Power Workers Union.
The employer in that case has a policy that requires antigen testing and verification of results. One of the issue (Issue # 1) at the Arbitration was who pays for the cost of the antigen testing, and whether the time the employees spent in administering the test billable working hours?
Arbitrator Murray held that:
Employees who have not confirmed that they are fully vaccinated are required to self-administer the rapid antigen test, and the cost of such testing is to be borne by the employer.
Employees are required to self-administer on their own time, prior to reporting to work, and are not entitled to compensation for the time spent in the administration of the test or in the reporting of the results.
Arbitrator Murray seemed to have taken a middle ground approach to the issue wherein both the employers and the employees bare part of the costs of antigen testing.
2. Mandatory Vaccination Policy
A much more heated and controversial topic of debate is whether or not a mandatory vaccination policy is justified.
Please read this article that talks about the concerns and considerations in vaccine policies in detail:
Like drug testing requirements, vaccination requirements engage not only privacy rights generally, but bodily integrity rights specifically. However, the impact and intrusiveness of a vaccine requirement on the individual is significantly greater than a requirement to submit to a test.
In addition, COVID vaccines occasionally has very serious side effects and more commonly causes pain, nausea and other unpleasant symptoms, and of which the long term side effects, if any, are not yet known.
The harm done by vaccination, if any, is irreparable by definition. No remedy, no monetary award by a Court can undone the infringement on privacy rights, bodily integrity, and pain and sufferings resulted from COVID side effects.
Nevertheless, the method of analysis of the reasonableness of the requirement is the same: the balancing test. It would be permissible for an employer to mandate vaccinations if the benefit of vaccination in the workplace outweighs the harm done to an employee.
The strength of that argument depends on several factors, most notably scientific evidence regarding the vaccines and an assessment of the risks within the workplace. Mandatory vaccine policies, if permitted at all, must be borne of necessity when no other realistically viable policy will suffice to meet objectively vital goals of the employer in meeting the legitimate and vital needs of its enterprise.
The alleged benefit of vaccination must be a benefit needed and justified beyond the protection provided by existing less intrusive protective means in the workplace – masking, physical distancing and hygiene – and in the context of available alternative work arrangements, such as working from home.
The balancing test for reasonableness is one of the simplest test and yet the administration of it is one of the most complicated.
Having a mandatory vaccination policy for workers in a long-term care home may easily satisfy the test of being a bona fide occupational requirement due to risk to the elderly and the health-compromised individuals in those settings. However, in a different workplace with a different set of facts, it may be more difficult to justify the need for a mandatory vaccination.
On October 1, 2021, the Minister of Long-Term care in Ontario announced that COVID19 vaccinations will be mandatory for all in-home staff support workers, students, and volunteers and that they must be fully vaccinated by November 15, 2021 unless they have a valid medical exemption. If not fully vaccinated, they would be prohibited from entering a long-term care facility to work. New hires would be fully vaccinated or have a medical exemption before they could work in a long-term care home.
However, on November 3, 2021, the government announced that Ontario will not make vaccination mandatory for hospital workers, primarily due to concerns regarding staffing shortages in the healthcare sector, except workers in long term health care facilities.
As mentioned above the context surrounding the mandatory vaccine policy is paramount and that there CANNOT be a “one size fits all” mandatory vaccine policy. The challenges faced by fact finders in applying the balancing test is highlighted in Blake v. University Health Network, 2021 ONSC 7139 (CanLII).
In Blake, the Court held at para. 28 that employment can be terminated at will outside of the collective bargaining regime in Ontario with compensation being payable where cause is not alleged, or if cause is alleged and not proved. The Court held that it could not accept that any plaintiff who is not in a union could “allege irreparable harm arising from threatened termination of employment”.
However, the Court in Blake did acknowledge at para. 29 that some of the plaintiffs may have additional rights under the Human Rights Code, but unfortunately there was simply no evidence before the Court in the motion record that comes close to establishing even a serious issue to be tried that the impugned vaccine policy contravenes the anti-discrimination provisions of the Code as regards any of them.
In other words, a Court will ONLY determine the applicable remedy on a case-by-case analysis after an employee has been terminated.
The Difficulties in applying the balancing test when many factors and many stakeholders with competing interests are involved resulted in inconsistency in the application of the balancing test. The two arbitration decisions discussed below will showcase the dilemma.
In the Matter of Arbitration United Food and Commercial Workers Union, Canada Local 333 vs. Paragon Protection Ltd., Paragon issued a notice to its security guard employees advising that all employees were to be fully vaccinated by October 31, 2021 (subject to valid exemptions for medical reasons or under the Human Rights Code).
In this case, mandatory vaccination policy was upheld.
The Arbitrator held that the Policy was reasonable, enforceable, and compliant with both the Ontario Human Rights Code and Occupational Health and Safety Act (OHSA) and adhered to the Ontario Human Rights Commission guidance that mandatory vaccination policies are permissible as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.
The arbitrator conclude that the Policy struck a reasonable balance between the rights of employees not to get vaccinated, their rights under the Code, and the Company’s obligation under Section 25(2)(h) of OHSA as support for their obligation to take every precaution measures reasonable for the protection of their workers, to provide a safe workplace for staff and that, while receiving a vaccine is an employee’s personal choice, “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations”.
In the Matter of Arbitration Electrical Safety Authority (“ESA”) vs. Power Workers Union (the "Union”), the opposite conclusion was reached. In this case, the ESA issued a notice to its employees advising that all employees were to be fully vaccinated by January 2022 when workers stop working remotely.
In this case, mandatory vaccination policy was struck down.
Prior to the implementation of the subject policy, the ESA had established a policy in September of 2021 which allowed employees who did not voluntarily disclose their vaccination status to be tested. Arbitrator Stout determined that the ESA had not demonstrated any difficulties in protecting their workplace through the use of a combined vaccination and testing regime, other than an unfounded concern by the ESA that mandatory vaccination rules and policies by third parties could interfere with the ESA’s business and desire to bring employees back to work on-site in January of 2022.
There were no collective agreement provisions that dealt with vaccinations and that there had never been a requirement for any employee of the ESA to be vaccinated as a condition of employment. There were few cases even before vaccination, and many workers were not in direct contact with the public.
Arbitrator Stout reasoned that any rule or policy must be shown to be reasonably necessary and must involve a proportionate response to a real and demonstrated risk or business need.
Arbitrator Stout recognized that in workplace environments that presented high risks or where there were vulnerable populations, mandatory vaccination policies may not only be entirely reasonable but may also be necessary and required.
In sharp contrast, in a workplace settings where employees can work remotely and where there is no specific problem or significant risk of an outbreak presented, or of any significant interference with the employer’s operations, then a reasonable less intrusive alternative policy should be adopted.
Arbitrator Stout distinguished the current case with the Paragon decision, and point out that 1) Paragon arose in a different context wherein employees performed all of their work at third party sites; and 2) the Paragon collective agreement contained language that required employees to receive a specific vaccination required at an assigned site. And as such Arbitrator Stout argued that his decision didn't conflict with Arbitrator von Veh’s award in Paragon.
3. Ontario Human Rights Commission Policy Statement Regarding COVID Vaccination
The Ontario Human Rights Commission Policy statement on COVID-19 vaccine mandates and proof of vaccine certificates, made on September 22, 2021, summed it up well. It’s all about balancing.
Vaccination requirements generally permissible
While receiving a COVID-19 vaccine remains voluntary, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code (Code) as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. This applies to all organizations.
Upholding individual human rights while trying to collectively protect the general public has been a challenge throughout the pandemic. Organizations must attempt to balance the rights of people who have not been vaccinated due to a Code-protected ground, such as disability, while ensuring individual and collective rights to health and safety.
Personal preferences and singular beliefs not protected
The OHRC and relevant human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.
Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.