Canadian HR Reporter

4 www.hrreporter.com N E W S "A violation of a public health or employer COVID-19 guideline is likely to be viewed as a very serious offence... irre- spective of whether the risk of that was realized or not." Two recent cases illustrate this point. In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), the arbi- trator upheld the termination of a union- ized security guard at Toronto Pearson International Airport after she was tested for COVID-19 but then went back to the workplace. "The issue in that case was whether the employee was aware of the require- ment to stay at home and isolate... and the arbitrator held that the employer COVID-19 guidelines were clear and also brought to the attention of all workers," says Fisher. "By making the decision to go to work despite the employer's guidelines as well as public health guidelines, the griever chose to put her coworkers and the general public at risk of serious illness." In LIUNA, Local 183 v Aecon Industrial, a construction worker who exhibited symptoms of COVID and was instructed to stay home until he was cleared to return instead chose to attend work. "The arbitrator held that the griev- er's decision to attend work, despite the employer's warning, was again a deliberate attempt to circumvent those instructions and put his [interests] ahead of the risk he knew he presented to others," she says, adding that the worker also had a number of previous safety infractions. "It seems not to be relevant in either of these cases whether the employee actu- ally had COVID-19, but the issue was their compliance." The next big question: vaccinations Of course, the next big challenge facing employers in the COVID safety realm concerns vaccines: Should they be mandated among workers? "One of the leading legal issues for the workplace in 2021 will be whether or not some employers can require a mandatory vaccination as a condition of work. There's no cases that I'm aware of that have been decided on this issue," says Lynk. The closest comparison is probably flu shots, he says, citing as examples two cases decided in 2015 and 2018 in Ontario. "Essentially, both arbitrators said a hospital cannot make a vaccine manda- tory as a condition of employment if there are other less intrusive means of keeping the workplace safe, i.e., requiring workers to wear masks, such as nurses or any other staff in a long-term care facility or hospital, who come in regular contact with each other and with patients." But the argument for COVID vaccines is qualitatively different and the outcome is not determinative because COVID-19 is more infectious and more deadly than the flu, says Lynk. Based on case law, it's still not entirely clear whether or not employers will be able to enforce mandatory vaccina- tion policies, especially with pushback from trade unions and employees, says Jennings. "It will be highly context-dependent in terms of the nature of the workplace," he says. "A lot will be somewhat contin- gent on where the science proves to be in terms of how effective COVID-19 vaccines are at actually preventing infec- tion to begin with, and preventing trans- mission, as opposed to simply fighting symptoms. I think that the more that the science indicates that it impacts trans- mission, the better case employers will ultimately have in terms of trying to push for mandatory vaccines, because then it becomes a health and safety issue for other employees in the workplace." CHRR EMPLOYERS EMBRACE SAFETY INITIATIVES "A hospital cannot make a vaccine mandatory as a condition of employment if there are less intrusive means of keeping the workplace safe." Michael Lynk, Western University 58% Percentage of employers providing sanitation stations around the workplace 54% Percentage of employers providing personal protective equipment (PPE) 53% Percentage of employers reorganizing the workspace for social distancing 48% Percentage of employers reducing the number of workers in physical workspaces 32% Percentage of employers increasing the flexibility of sick-day policies Source: Express Employment Professionals, Canada Osgoode Hall in Toronto, which houses the highest courts of Ontario

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