Desperate Times, Desperate Measures: Is strict discipline necessary to ensure workplace safety during the pandemic?

The COVID-19 pandemic has created unique safety concerns for workplaces and new headaches for employers and unions as they put in place measures to reduce the risk of transmission and respond to evolving public health restrictions. However, questions remain as to how far employers can go in enforcing pandemic-related health and safety policies and at what point unions are likely to push back on measures such as mandatory vaccinations and COVID-19 testing as excessively severe responses. In this webinar, seasoned advocates will examine the tension between workplace safety and personal autonomy and review the latest arbitral decisions that set out boundaries of workplace discipline in response to the COVID-19 pandemic, addressing issues such as the following:

• Is an employer required to have an internal workplace policy in order to impose discipline, or can a failure to follow public health guidelines provide a valid basis for discipline? Have arbitrators shown a willingness to enforce infection control policies that exceed measures suggested by public health officials?
• Are arbitrators adopting a harder line for violations of safety protocols, imposing more severe disciplinary penalties than might be assessed for other infractions?
• Can employees be required to undergo mandatory testing for COVID-19? Are there factors that make testing more reasonable in some workplaces than in others?
• What do past decisions relating to workplace vaccination policies tell us about an employer’s ability to require that its workers receive a COVID-19 vaccine or provide proof of vaccination? Can employees be disciplined if they refuse to comply with such a policy? What about other non-disciplinary responses, such as being placed on a leave of absence without pay?
• Are there elements that should be included in a vaccination policy that will increase the odds of it withstanding scrutiny while also respecting employees’ human rights and privacy?
• Is it possible to discipline employees for conduct outside of the workplace that could increase their risk of contracting COVID-19? Can an employer put in place policies that limit what workers can do in their off-duty hours, such as restrictions on attending gatherings or travelling outside of the province or country?