Vaccinate Or Test COVID-19 Policy: Arbitrator Hints Termination For Cause Could Be Upheld

Almost a year ago, we wrote an article about whether a mandatory COVID-19 vaccination policy could be enforced at arbitration. The answer was the classic (and frustrating) it depends. When we wrote that article, the vaccines had just been approved so no cases had yet been decided. Now, we have the benefit of a series of arbitration awards on COVID-19 policies. In one of the most recent awards¹, an arbitrator upheld many of the key elements of an employer's "vaccinate or test" COVID-19 policy, and hinted the failure of unvaccinated individuals to test might be cause for termination.

What Happened?

The employer implemented a "vaccinate or test" policy to mitigate the risk of COVID-19 in the workplace. The policy applied to all staff, including unionized employees, and took effect September 23, 2021. The policy, among other things, provided that: