Arbitrator Decides that Employer can Place Employee on Unpaid Leave of Absence for Failure to Provide Vaccination Status

The recent decision of Teamsters Local Union 847 v Maple Leaf Sports and Entertainment 2022 CanLII 544, has provided guidance on the outcome of a failure of a unionized employee to provide information regarding their vaccination status in light of a vaccination policy being implemented.

On September 2, 2021, the employer, Maple Leaf Sports and Entertainment, implemented a vaccination policy which required employees be fully vaccinated by October 31, 2021. As part of the policy, employees were required to disclose their vaccination status and/or underlying medical information regarding the status through a secure portal operated by a third party.

The grievor, refused to disclose his vaccination status as required by the policy. The Employer responded to the refusal by placing the grievor on an unpaid leave of absence. The grievance asserted that by keeping the grievor out of the work in these circumstances the Employer has violated the grievor’s seniority rights, as well as article 13.01 and 13.05 of the collective agreement. The most pertinent article 13.05 a) stated the following:

Except as is otherwise specifically provided in Sub-Clause 13.05 (b) hereof, an employee who is required to report for work shall receive at least eighty (80) hours pay at his gross rate, provided that he is available to perform eighty (80) hours of work in such pay period. Such guarantee shall only apply for a maximum of ten (10) pay periods commencing with the first pay period in November each year. Except for the period described herein the Company will otherwise schedule full-time employees to 40 hours of available work per week by seniority provided that the employees have made themselves available

The Union argued that the obligation on the Employer was to provide employees work opportunities by seniority and there was nothing which allowed the Employer to deny the employee’s entitlement to work by seniority on the basis of a failure to disclose the vaccination status. Further, the Union submitted that an employee’s vaccination status was private and it should not be subject to disclosure in the circumstances. The Union attempted to argue that instead, the employee could simply submit to regular antigen testing. The Union noted that it was not attempting to challenge the actual vaccine mandate, but just the requirement for disclosure of the status.

The Employer argued that the articles argued by the Union had no application as there was no guarantee of work when an employee is not required to attend the workplace. The right to work was also subject to an employee’s ability to perform the work in question. The Employer further argued, that it had every right under the collective agreement to establish that a requirement that employees be fully vaccinated under its management rights clause. In light of the policy requirement, an employee who does not disclose their vaccine status is not able to establish their ability to perform the work in question.

In respect of the privacy rights argument, the Employer argued that privacy rights were not absolute and must be balanced against other legitimate interests including the duty and obligation to protect the health and safety of its employees.

The Arbitrator agreed with the Employer, at paragraph 19 and 20, the Arbitrator stated as follows:

It is clear that the weight of authority supports the imposition of vaccine mandates in the workplace to reduce the spread of Covid 19. That is particularly so where employees work in close proximity to other employees, as they do in this case. They authority to impose such mandates arises not only from management’s right to implement reasonable rules and regulations but also form the duty of employers to take any necessary measures for the protection of workers as set out in OHSA…

It seems to me that by opposing the disclosure of the vaccine status the Union is challenging the vaccine mandate. I do not see how the employer can enforce a vaccine mandate without requiring disclosure of an employee’s vaccine status…In that regard the arbitral authority makes it clear that Employers are indeed entitled to seek disclosure of an employee’s vaccine status to the extent necessary to administer a vaccine policy in the workplace. 

The Arbitrator noted that the policy for being vaccinated was reasonable given that the pandemic existed, and the policy was appropriate in order to fulfill its duties under OHSA to protect all the workers in its employ. The grievance was dismissed, and it was determined that the Employer did not violate the collective agreement or any other legislation by placing the grievor on unpaid leave of absence for failing to disclose his vaccination status.

While the question of whether or not the vaccination policy was not the central argument, the decision indicates that a vaccination policy where workers are in close proximity will be held to be a reasonable use of management rights. Further, the decision is helpful to employers seeking to have workers go on unpaid leave, where there is a failure to disclose their vaccination status. We would note that, despite this decision collective agreements are vastly different, and before putting an employee on unpaid leave you should review your collective agreement.

It is notable that as we emerge from the pandemic, many employers have started eliminating mandatory vaccine policies or reducing the requirements of those policies. To the extent that society is clear of the pandemic remains in doubt. The presence of COVID-19 in our society remains a threat, and each employer must continue to evaluate whether or not a mandatory vaccine policy remains appropriate for your workplace. If you have any questions about this decision, or whether you have the appropriate circumstances to place an employee on unpaid leave or require changes to your mandatory vaccine policy, please reach out to us.