Case Comment: How the “precautionary principle” allowed TDSB to put some workers on unpaid leave

COVID-19 has been a complex challenge for employers – and unions – to balance the rights and interests of workers in the face of a global pandemic.In a key decision in March of 2022, the well-respected arbitrator William Kaplan issued a decision about a grievance filed by CUPE Local 4400 against a COVID policy instituted by the Toronto District School Board (TDSB).The policy required employees to disclose their vaccination status by a certain date. After that deadline date, the employer would place on non-disciplinary but unpaid leave workers who remained unvaccinated. The employer also created exceptions for medical, human-rights-code, and staffing reasons.Although CUPE encouraged its members to vaccinate, the union asserted TDSB’s policy was unreasonable and argued that, rather than implementing a mandatory vaccination policy, TDSB should continue to rely on frequent testing and personal protective equipment measures (such as masking). CUPE further argued that the policy itself was a violation of the Canadian Charter of Rights and could not be enforced.The arbitrator did not accept that the policy violated the Charter, and he found that the policy itself was reasonable, despite the policy not requiring a third booster and despite the exceptions the TDSB made for their own benefit.This was, in large part, because employers in Ontario and across Canada are obliged to take all reasonable precautions to protect the health and well-being of employees. They must do this according to information that exists at that moment – they are neither expected nor allowed to wait for scientific certainty. This is known in the cases as “the precautionary principle”.Arbitrator Kaplan ruled that, because of the precautionary principle, TDSB acted correctly by using the evidence available at the time the policy was created to protect workers, students and members of the public. Indeed, Kaplan went so far as to say it would be hard to understand why the TDSB would implement any other policy.Kaplan found that the Charter didn’t apply because the interests of the workers were economic interests that the Charter did not protect. That is – the Charter doesn’t protect your right to pursue a certain profession or collect a certain paycheque.

What is notable in this case?

CUPE’s grievance may have been unsuccessful, but the ruling it sparked has provided useful guidance in terms of what the Employer is entitled to do. What was not in the ruling is also notable. The TDSB was not terminating non-compliant employees or implementing discipline. Indeed, by the time the case was heard, the TDSB had already lifted the policy and was allowing unvaccinated workers to return to work. So, this ruling does not say employers are allowed to terminate or even discipline unvaccinated workers.What the ruling does say is that TDSB was justified, at that time, to keep unvaccinated workers out of the workplace. The ruling also says that TDSB was justified by its staffing needs to exempt workers from being held out of the workplace.Read the arbitrator’s full TDSB v CUPE 4440 rulingOther Contract Enforcement Blawgs