Omicron Variant at the Forefront of COVID-19 Vaccination Policy Challenge
The recent arbitration decision of Toronto District School Board and CUPE, Local 4400 (Re: PR734 Vaccine Procedure) (the “Decision”) considers the reasonableness of the Toronto District School Board’s (the “TDSB”) COVID-19 vaccination policy while taking into consideration the Omicron variant. It also addresses the question of whether section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) was infringed by the policy.
Since the start of the pandemic, schools in Ontario have moved back and forth between in-person and virtual learning at various times in response to outbreaks and new variants of COVID-19.
In mid-August 2021, the Ontario government announced a vaccination status disclosure (“VSD”) requirement for all employees working at publicly funded school boards. Following this, TDSB’s Board of Trustees voted unanimously to develop a mandatory vaccination procedure for TDSB employees. Consultation took place with affected employee groups including CUPE, Local 4400 (the “Union”) who represented approximately 15,000 TDSB employees. The VSD was rolled out as required, with TDSB’s COVID-19 Vaccine Procedure being implemented shortly thereafter (the “Policy”).
The Policy required all employees who had direct contact with staff or students at a TDSB workplace to be fully vaccinated (i.e., provide evidence of having received two doses of an approved COVID-19 vaccine) or establish that they had a valid medical exemption or an exemption in accordance with human rights legislation. Employees who did not comply with the Policy were to be placed on non-disciplinary leaves of absence without pay. The Union opposed certain aspects of the Policy, requesting reconsideration of the mandatory vaccine requirement and suggesting instead that its members be accommodated through frequent testing and other measures. TDSB declined.
TDSB did however grant a temporary exemption to approximately 300 employees who were permitted to work unvaccinated, but only where their positions were essential to the reopening of schools and the provision of in-person learning. TDSB also allowed employees to work while awaiting a determination regarding medical/creed exemption under human rights legislation in accordance with the Policy. In both scenarios, the Policy required employees to conduct testing.
Against the backdrop of the Policy implementation, in December 2021, the first cases of the highly transmissible Omicron variant of COVID-19 emerged and quickly became the dominant variant in Ontario (and the rest of Canada).
In keeping with the theme of rapid change since the onset of the pandemic, on the last day of arbitration, March 10, 2022, the TDSB Board of Trustees passed a resolution rescinding the Policy effective March 14, 2022, following notification by the Ministry of Education that school boards were no longer required to have VSDs in place.
Analysis and Decision
The Policy resulted in more than sixty policy, group and individual grievances being filed. By agreement of the parties, two main issues were to be determined by Arbitrator William Kaplan at arbitration: one, whether the Policy infringed Section 7 of the Charter; and two, whether the Policy was reasonable, and specifically, the vaccine attestation and requirement that non-compliant/unvaccinated employees be placed on non-disciplinary leave without pay. The individual and group grievances would proceed at a later date.
The parties relied heavily on the expert opinions of two physicians at arbitration. Dr. Raywat Deonandan, an associate professor at the University of Ottawa and accomplished epidemiologist, was relied upon by the Union. Dr. Mark Loeb, the Michael DeGroote Chair in Infectious Diseases at McMaster University who also has a clinical practice with a specialty in infectious diseases, was relied upon by the TDSB.
The experts agreed on almost everything. Both agreed that full vaccination was the preferred and most effective method of keeping COVID-19 out of schools and that mRNA vaccines are highly effective at preventing infection, hospitalization and severe illness. They also agreed that the effectiveness of being fully vaccinated is reduced but not eliminated against Omicron and that a third shot or booster dose substantially restores the ability of earlier vaccines to stave off infection. They agreed that Rapid Antigen Tests (“RATs”) do not prevent infections, have reduced ability to detect the newer Omicron variant, and can have compromised results if swabbing was not correctly performed. Where the two experts diverged in their opinion was whether RATs reduce transmission in the workplace and whether they are an effective substitute or alternative to vaccination. The Union’s expert, Dr. Deonandan said yes while the TDSB’s expert, Dr. Loeb, said no.
Arbitrator Kaplan preferred the evidence of Dr. Loeb on this point, rejecting Dr. Deonandan’s view that RATs can be an appropriate substitute for full vaccination. The Arbitrator also found that vaccination is the best way of preventing transmission in schools and that RATs should only be relied on in cases of absolute necessity such as justified exemptions to the Policy.
The Policy does not Infringe Section 7 of the Charter
The Union argued that its members had a constitutionally protected right to choose what drugs were injected into their bodies and they should not be denied that fundamental right simply because they were employed at the TDSB, when, in their opinion, a testing regime could permit them to safely attend work. TDSB argued that Section 7 of the Charter was not engaged nor violated, submitting that no non-consensual medical treatment was imposed and employees had a choice as to whether to get vaccinated.
The Arbitrator found that the Policy did not require mandatory vaccination, nor did it violate Section 7 of the Charter. TDSB employees were not prevented from making a fundamental life choice. The settled state of the law was emphasized: Section 7 of the Charter does not insulate a person who chooses to not be vaccinated from the economic consequences of that decision.
The Policy is Reasonable
The Union argued that the Policy was an unreasonable exercise of management rights and that it failed to comply with the factors set out in the seminal decision of KVP & Lumber/Sawmill Workers’ Union, 1965 CarswellOnt 618 (“KVP”). The Union argued that in applying KVP, arbitrators generally consider the nature of the interests at stake, whether less intrusive measures are available, and the effect of the Policy on employees.
From the Union’s perspective, the interests at stake were “enormous”. It took the position that employees did not have a genuine choice, but rather an artificial one between submitting to an unwanted medical procedure and maintaining a livelihood. It argued that it was inconsistent with KVP for TDSB to continue to rely on two-dose vaccination as “full vaccination” under the Policy when the evidence was that a booster was required to restore effectiveness. The Union argued that while the Policy may have been appropriate in November 2021, it no longer was in light of the Omicron variant.
TDSB conversely argued that the Policy was authorized by law (namely through the Occupational Health and Safety Act), permitted by the collective agreement and in full compliance with KVP. The Policy was designed to keep employees (and students) safe, and vaccination was in accord with the precautionary principle which required the TDSB to do whatever it could to protect the safety of employees and students as science continued to evolve. TDSB also noted that many students were under the age of 5 and therefore ineligible for vaccination and presented a large population of vulnerable individuals.
Based on the expert evidence which indicated that vaccination was the best way to keep people and workplaces safe from infection against COVID-19 and the best way to prevent transmission in the schools, the Arbitrator found the Policy to be a reasonable exercise of management rights which was applied in a careful and nuanced fashion. The fact that TDSB had a regime allowing for exemptions for essential workers and allowing for employees with human rights claims to continue to work under a testing regime, was not an inconsistent application of the Policy.
The Arbitrator held that TDSB was allowed to promulgate rules and policies, and nothing in any of the collective agreements fettered that management right. In citing ESA & PWU (an unreported decision of Arbitrator Stout dated January 4, 2022), the Arbitrator noted the increased need for vaccination policies when dealing with vulnerable populations: “In workplace settings where the risks are high and there are vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated), then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.”
To summarize, the Arbitrator concluded that the Policy was not contrary to Section 7 of the Charter and that the Policy was a reasonable exercise of management rights.
Takeaways for Employers
As noted in an earlier publication, COVID 19 – Mandatory Vaccine Policies Legally Challenged through Grievance Arbitrations, the reasonableness of a mandatory vaccination policy is a fact-specific analysis. The health and safety risk within the workplace is also a significant factor, for example whether a vulnerable population is present such as the elderly or children who cannot be vaccinated. Of note in this case is the Arbitrator’s consideration of the Omicron variant and his determination that the Policy was reasonable even though being “fully vaccinated” under the Policy only required two doses of an approved vaccine (and not an additional “booster” shot).
Additionally, although navigating the COVID-19 pandemic has become part of daily life since its onset more than two years ago, this case serves as a reminder that the seriousness of the impact of COVID-19 and accordingly the response required to curb the risk, cannot be ignored. As noted by the Arbitrator, as of the date of the Decision, COVID-19 has resulted in more than six million deaths and millions more becoming sick, with some continuing to suffer from the impact.
This article was written with the assistance of Siobhan Donovan, an articled clerk working at Cox & Palmer.