An Alberta arbitrator recently determined that the Alberta Health Services (AHS) was not in violation of the law when it held a nurse out of work without pay pending confirmation of vaccination following a measles outbreak at one of its hospitals.
Facts
In this case a nurse at the hospital (the "Grievor") was exposed to measles at work in May of 2019. In accordance with the hospital's vaccination policy the Grievor was required to provide proof of measles vaccination. When she could not do so she was held out of service and had to remain off work in quarantine without pay until cleared of having contracted measles.
The Union filed a grievance alleging, in part, that AHS had no authority to place the Grievor on an unpaid leave of absence.
Decision of the Arbitrator
The arbitrator, following an established line of "outbreak" cases and applying them to the facts in this case, disagreed with the Union and dismissed the grievance.
Notable Takeaways
This case has important and obvious implications for employers who are currently looking to develop COVID-19 vaccination policies. Significantly, this decision supports:
- The employer's right to require proof of vaccination in cases of a workplace outbreak or identified COVID-19 exposure; and,
- The right of the employer to hold an unvaccinated employee out of service without pay for a quarantine or testing period following a workplace outbreak or identified COVID-19 exposure.
As a note of caution, however, it should be acknowledged that the dispute in this case arose in the healthcare sector where the potential for unimmunized staff to pass on a contagious disease to other staff and patients following an exposure is extremely high. Whether an employer can require proof of vaccination to remain in the workplace following a COVID-19 outbreak/exposure in a non-healthcare setting remains an open question.
Another question yet to be answered is whether employers will, as part of their return to the workplace protocols, be able to require their employees to disclose their COVID-19 vaccination status prior to returning to the workplace and what implications this may have for an employee who elects not to be vaccinated for reasons other than those protected by the Human Rights Code (e.g. disability/medical condition).
This will no doubt be a rapidly developing area of jurisprudence, both in the Courts and at arbitration, in the months to come.
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