‘There's not much that the employer can do without a clear request’ for accommodation
May 15, 2025
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The termination of a school custodian for failing to comply with a mandated provincial COVID-19 testing policy was excessive, although discipline was justified, a New Brunswick arbitrator has ruled.
The worker, 44, was initially hired by the department in 2012 as a casual custodian. He became a full-time custodian at a school in 2019. He didn’t have any discipline on his file.
On Aug. 19, 2021, the New Brunswick Department of Education and Early Childhood Development introduced a policy mandating its employees to provide proof of full vaccination or undergo regular COVID-19 testing. Employees who weren’t vaccinated would be required to submit to point-of-care testing three days per week, as arranged by individual schools or the school district onsite. They also had to complete a polymerase chain reaction (PCR) test once per month.
The department set a deadline of Sept. 3 to provide proof of vaccination or to start following the testing requirements. A failure to comply with testing or masking requirements could face disciplinary measures “up to and including dismissal.”
When the department introduced the policy, the worker was concerned about the methods of testing. When he saw the swab being used for the onsite point-of-care testing, he refused to get tested. He had been listening to audio courses about the COVID-19 vaccine that gave him health and safety concerns and...
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