Disclosure of Status During Vaccine Mandates

As the many COVID-19 employment law cases continue to work their way through the courts, there is an increasing number of decisions emerging in the unionized context.

A recent arbitral award by Arbitrator Jesin in Teamsters Local Union 847 v Maple Leaf Sports and Entertainment looked at the issue of vaccination disclosure, and the reasonableness of it in context of a mandatory vaccination mandate by the employer.

The unionized employee worked in a sporting and events environment that required close contact with other parties, including other employees. The employer implemented a mandatory vaccination policy after the provincial government in Ontario introduced a mandatory vaccination for patrons of these events on Sept. 1, 2021.

The policy took many reasonable precautions, including the use of a third-party to confirm vaccination status, limiting access to this information and keeping it confidential, and removing it from the employee file once it is no longer needed. They also introduced disciplinary measures for any employee violating this confidentiality.

Employees were informed that if they were not fully vaccinated by Oct. 31, 2021 they would be placed on an indefinite unpaid leave of absence, and may be subject to termination. This decision was based on a history of outbreaks in the workplace, and recommendations from public health and ministry officials encouraging vaccine policies.

Once the employee was put on indefinite and unpaid leave, the union responded that the collective agreement only stipulated that seniority was the only factor for assigning work, and guaranteed a minimum amount of work where it was available,

13.05 a)…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…

Vaccination status did not inform the skill or ability to do the available work according to the union, and the private medical health information should not be disclosed. Instead, they suggested compliance with ss. 25(2)(h) of the Occupational Health and Safety Act through the use of regular rapid antigen testing. The union was therefore not challenging the vaccination policy, but challenging the mandatory disclosure of any vaccines received.

The Supreme Court of Canada stated in Dagg v. Canada (Minister of Finance),

65 The protection of privacy is a fundamental value in modern, democratic states; see Alan F. Westin, Privacy and Freedom (1970), at pp. 349-50. An expression of an individual’s unique personality or personhood, privacy is grounded on physical and moral autonomy — the freedom to engage in one’s own thoughts, actions and decisions; see R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 427, per La Forest J.; see also Joel Feinberg, “Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?” (1982), 58 Notre Dame L. Rev. 445.

The union also relied upon the recent arbitral decision in Ellisdon Construction Ltd. v Labourers’ International Union of North America, where Arbitrator Kitchen upheld the employer’s right to require rapid testing, but also the test from St. Michael’s Hospital v Ontario Nurses’ Association, which looks at whether there are less intrusive means to obtain the policy objective of the employer. In that case, the alternative of working in an open air environment was rejected, as there was no evidence that these efforts would significantly reduce the risk of transmission.

Arbitrator Jesin rejected this argument and concluded,

19. 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 with other employees, as they do in this case. The authority to impose such mandates arises not only from management’s right to implement reasonable rules and regulations but also from the duty of employers to take any necessary measures for the protection of workers as set out in OHSA. Indeed, the Union has emphasised that it is not challenging the Employer’s vaccine mandate in this case but is only seeking to protect the employee’s right to keep personal medical information private.
20. It seems to me that that by opposing the disclosure of vaccine status the Union is indeed 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. Without that information it cannot ensure that all employees are vaccinated. 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, particularly if the information is secured and protected from unnecessary disclosure. I endorse and agree with those authorities. I also accept that the Employer has put procedures in place to secure and adequately protect the confidentiality of any such information.
21. I do not agree with the Union’s contention that the seniority rights accorded in Article 13 are being denied. Rather, the Employer has established that being vaccinated for Covid 19 is a necessary qualification for the performance of work within the bargaining unit. Such a determination is reasonable given the pandemic that presently exists. More fundamentally, it is a reasonable and appropriate approach to fulfilling its duties under OHSA for the protection of all workers in its employ. Furthermore, the Employer in this case has taken appropriate steps to protect the confidentiality of any information that is disclosed under its policy.
22. For all these reasons it is my determination that the Employer has not violated the collective agreement or any relevant legislation by requiring the grievor to disclose his vaccine status and by placing him on an unpaid leave of absence for refusing to disclose his vaccine status. Accordingly, the grievance is dismissed.

While unionized environments are unique from workplaces that are not unionized, in that they are largely informed by the interpretation of the collective agreement in light of facts and legislation, it does appear that as long as a mandatory vaccination policy is upheld, disclosure of compliance with that policy by a unionized employee will likely be required as well.