Various questions arise from the competing interests of employees and employers when dealing with mandatory vaccination policies. While there were labour arbitration decisions relating to influenza and other vaccines, until very recently, there were no decisions on vaccine policies in the context of COVID-19 . Among the cases that are starting to emerge, two labour arbitration decisions released in the last few weeks offer guidance to employers wondering how decision-makers might decide the issue of "How does an employer balance an employee's privacy rights and the right to bodily integrity with the employer's legal obligations to protect its workers and the public in the context of a pandemic?"
The Electrical Safety Authority and Power Workers' Union ("ESA") decision was released on November 11, 2021. In this case, the arbitrator found the employer's vaccination policy to be unreasonable to the extent that employees could be disciplined or discharged for failing to get fully vaccinated. The arbitrator also found it unreasonable, at this time, to place employees on administrative leave without pay if they did not get fully vaccinated. The arbitrator explained that these conclusions regarding the reasonableness of the vaccination policy could change as the COVID-19 situation unfolds in the coming weeks and months.
In assessing the vaccination policy, the arbitrator applied the legal test from a well-known labour...
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