City of Ottawa’s largest union loses grievance over mandatory vax policy

Article content

The City of Ottawa’s largest union has failed in its bid to win financial compensation for workers who lost salary and benefits because of their refusal to abide by the city’s mandatory vaccination policy.

Labour arbitrator Michelle Flaherty found the city’s vaccination policy was a reasonable response to the health threats posed by COVID-19.

“It struck an appropriate balance between employees’ interests and the serious health and safety concerns related to COVID-19,” Flaherty concluded in a recent decision that rejected the policy grievances filed by CUPE 503.

Article content

“Mandatory vaccination was a reasonable precaution, and the evidence establishes that it reduced the risk of transmission, including by asymptomatic individuals, and reduced the severity of symptoms for those who did — despite all reasonable precautions — contract COVID-19 in the workplace.”

Flaherty said the city’s vaccination policy was in keeping with its obligations under the Ontario Health and Safety Act to take “every reasonable precaution” to protect employees from COVID-19.

The city’s policy required employees to be fully vaccinated by Nov. 15, 2001. Workers who refused without a valid medical reason were suspended without pay or health benefits. (Workers could maintain those benefits if they paid both the employer’s and employee’s share.)

The policy remained in place until April 3, 2022 for most city departments, although some “high-risk” workplaces, such as the Ottawa Paramedic Service, kept the vaccination requirement in place beyond that point.

All of those employees who refused to be vaccinated against COVID-19 have since returned to work.

Article content

The grievance centred on whether the city was originally justified in suspending unvaccinated employees, and if not, whether they were entitled to compensation for lost wages and benefits.

CUPE 503, the bargaining unit for “inside-outside” workers, represents more than 6,000 municipal employees, including health-care workers, trades people and librarians.

The union argued that the city’s vaccination policy imposed unreasonable financial penalties to “coerce compliance” from its members, and to save the city money.

For instance, the union said, once the vaccination policy was in place, the city eliminated more expensive measures that contributed to worker safety, such as assigned vehicles, and returned to using vehicle pools.

Lawyers for the union also argued that once the vaccination policy was introduced, city officials stopped assessing the viability of less intrusive measures, such as social distancing, personal protective equipment (PPE) and rapid antigen testing, to keep employees and the public safe.

For its part, the city argued that scientific evidence and expert medical opinion have confirmed that vaccination was by far the safest and most effective method of tackling COVID-19.

Article content

The pandemic required the city to address “known, unknown and unknowable risks,” city lawyers said, and the vaccination policy, although imperfect, represented a rational and responsible approach based on the best available evidence.

Simply imposing a PPE requirement, or other such measures, would not have satisfied the city’s obligations under the health and safety act given the availability of a vaccine, they argued.

In her 37-page decision, Flaherty agreed with the city.

She said the city had to balance employee rights with the public’s needs during an unprecedented global pandemic, and had to make decisions in an environment of constantly changing circumstances and new COVID-19 variants.

“Given the very real health and safety risks, they (city officials) could not sit back and wait for scientific certainty,” Flaherty said.

The city considered less invasive options, she said, but reasonably concluded they were insufficient alternatives to vaccination. Rapid testing, Flaherty said, cannot detect a low viral load in someone with COVID-19, while vaccination has at least been shown to reduce the rate of transmission by asymptomatic individuals.

Article content

“The reasonableness analysis does not mean that, to be reasonable, a vaccination policy must provide perfect protection against all variants,” Flaherty noted.

Flaherty also rejected the union’s assertion that unvaccinated office workers could have safely worked from home with the right equipment and job modifications. She said that, given the nature of the city’s operations, there was a reasonable prospect that an employee’s physical presence could have been required in the workplace.

Flaherty has yet to decide whether it was reasonable for the city to continue its vaccine mandate policy at the Ottawa Paramedic Service beyond May 2023.

Article content