Labour board rules against City of Ottawa union in vaccine mandate policy fight

Ottawa City Hall (File photo)

The City of Ottawa's largest employee union has lost in its bid to obtain financial compensation for its members who lost pay and benefits for refusing to comply with the city's mandatory COVID-19 vaccine policies.

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A decision by the Ontario Labour Relations Board found the city's policy of requiring its employees to be fully vaccinated was a reasonable response to the public health emergency that began in March 2020.

"I find it reasonable of the City to extend the Policy to ensure that the employees serving them are vaccinated," read the decision by labour arbitrator Michelle Flaherty.

"It struck an appropriate balance between employees’ interests and the serious health and safety concerns related to COVID-19. 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."

CUPE 503, which represents more than 6,000 "inside/outside" municipal workers at City Hall including health-care workers and trades people, filed grievances on behalf of all three of its bargaining units.

The union argued the policy was unreasonable on a number of fronts, including that the city took a single blanket approach to health and safety, rather than a more nuanced, department-specific approach.

"In addition to the employer placing unvaccinated employees on unpaid leave and ceasing their pension contributions, which had a negative economic impact on employees, the employer also cut off benefits for these employees," the union argued.

"Denying employees and their families coverage for lifesaving medications and other needed health care did not in any way enhance workplace safety and was purely punitive."

As of Nov. 15, 2021, City Hall employees were required to be fully vaccinated against COVID-19. Staff who were unable to be vaccinated were required to provide written proof of a medical exemption from a doctor or nurse practitioner.

Staff without an exemption were able to take vacation leave, time off in lieu or a leave of absence.

The city said in November 2021 that almost 600 staff were suspended without pay or benefits during the period of time the policy was in place. No employees were terminated as a result of the policy.

Mandatory vaccination policies were loosened in April 2022 and unvaccinated employees were allowed to return to work unless they were employed within what the city deemed to be a "high-risk" setting.

The union believed these were unreasonable financial penalties whose sole purpose was to "coerce compliance" with the policy.

The union also submitted that once vaccine policies were introduced, the city stopped assessments of other less intrusive measures that could become available and could better balance the interests of unvaccinated and vaccinated employees.

It asserted that office workers could have worked from home, equipment operators could be assigned the same vehicles, and those who interact with the public directly could be adequately protected through a mix of social distancing and personal protective equipment (PPE), rather than a blanket vaccination policy.

"For employees who had been working remotely prior to vaccines becoming available, allowing them to continue to work from home provided the best possible protection against transmission in the workplace," the union's lawyers argued.

The city submitted that the scientific evidence and expert medical opinion confirmed vaccines were the safest means to combat COVID-19 and that it had a responsibility as an employer to combat the health and safety issues in the workplace under the Occupational Health and Safety Act.

"The employees of the City were not forced to become vaccinated, but the consequences of that choice were made clear from the outset," the city's lawyers submitted.

"Any employees allegedly affected by the implementation of the Vaccination Policies made their own decision to choose not to comply with policies aimed at protecting their health and safety, that of their colleagues and potentially, members of the public."

The city argued its policies were in line with other jurisdictions who implemented similar policies for its workers, including the City of Toronto and the City of North Bay.

"The City made extensive efforts to educate their employees about the vaccine and to make becoming vaccinated easy and “user-friendly”. Ample warning of deadlines and consequences was provided. The City also provided a two-week extension to provide additional opportunities for compliance with the Policy," the city's lawyers submitted.

In her decision, Flaherty agreed with the city, saying the policy "struck an appropriate balance between employees' interests and serious health and safety concerns related to COVID-19."

"If there is a reasonable prospect that an employee’s physical presence may be required at work, it is reasonable to require that they be vaccinated," Flaherty said.

Flaherty also agreed with the city in its decision to extend the vaccination policy in high-risk settings past April 2022, as the policy only applied to those providing services to the most vulnerable members of the population.

Flaherty will decide on the city's vaccination policy involving employees with the Ottawa Paramedics Service, who have kept the vaccination requirement in place, at a later date.