Arbitrator upholds firing of New Brunswick woman who refused to take COVID-19 rapid tests

An arbitrator in New Brunswick has upheld the firing of an unvaccinated public-sector worker who refused to take at-home rapid tests for COVID-19 and report the results to her employer.

Jennifer Poulos was a long-term public servant in the province. She held various positions since she was hired in July 1997.

On March 22, 2021, she started a job with the Regional Development Corporation as a probationary employee as a program support assistant. After six months, she was made permanent. About six weeks later, on Sept. 28, 2021, Poulos was fired for cause.

The reason the employer gave was her refusal to comply with a government-wide policy that required employees who did not show proof of vaccination by Sept. 13, 2021, to complete three COVID-19 rapid tests a week at home and share the results with the employer.

A bulletin on the policy was sent to all workers with the following text: “Instances where an employee who has not provided proof of full vaccination does not comply with either the masking or testing requirements will be subject to the disciplinary process up to and including dismissal.”

Poulos said the employer had no authority to impose a new term and condition of employment by requiring her to share the results of the rapid tests.

Refusal to test

On Sept. 20, management sent Poulos an email asking if she had changed her mind about refusing to take the rapid tests.

She responded, via email, with a simple “no.”

The employer met with her and gave a written warning, stating that her refusal to follow policy was “unacceptable, constitutes insubordination and puts the health and safety of your coworkers and students at risk.”

It warned that if she didn’t comply with the policy by Sept. 21 (the next day), she would be placed on unpaid suspension for up to five working days.

The following day, when she arrived at work, she again refused the policy. She was suspended with a return-to-work date of Sept. 28. A letter from her employer stated:

“You are expected to comply with the policy by September 28, 2021. If you fail to comply by this date a disciplinary meeting will occur on September 28, 2021 after which, in the absence of mitigating circumstances, your employment will be terminated with cause.”

Poulos returned to work on Sept. 28 and again refused to comply with the policy. She was terminated.

Changing vaccination policy

The province changed its COVID-19 policy again in October 2021, requiring all employees to be fully vaccinated without exception. On Nov. 19, 2021, it announced that public servants who were not fully vaccinated would be placed on leave without pay.

The policy changed again in March 2022 when it announced vaccination would no longer be a condition of employment, with some exceptions for regional health authorities and certain other vulnerable sectors. Even that mandate was lifted on April 11, 2022.

The ruling

The arbitrator said that while Poulos’ behaviour was not theft, dishonesty or violence it was “sufficiently serious to be incompatible with the fundamental terms of her employment relationship.”

Her refusal to take the tests was wilful disobedience.

“As was her right, the grievor decided not to provide the employer with her vaccination status and declined to accept the offer of the employer to take three POCTs a week and inform the employer of the results so as to protect her co-workers,” the arbitrator said. “This was, as noted above a reasonable response by the employer addressed to protect the workforce and comply with its obligations under the OHSA.”

Poulos argued the policy change in November 2021 would have allowed her to go on unpaid leave until March 18, 2022. On that date, the vaccination requirement was lifted and she would have been able to return to her position. But the arbitrator was unswayed.

“While this is an unfortunate reality it ignores the fact that a further interim policy was announced in October 2021 requiring all employees to be vaccinated. In my view what (Poulos) is asking me to do is to condone her refusal to comply with a reasonable response by the employer for a period of two months,” the arbitrator said.

In short, the case hinged on the reality at the time of dismissal – not what might change down the road.

“The grievor did not suggest what would have been an appropriate response by the employer during this period. Was the employer required to allow her to come to work in violation of its own policy?” the arbitrator said. “In my considered opinion at the time of termination, the employer acted reasonably in formulating the policy in question and in altering it as more scientific knowledge of COVID-19 was obtained. Therefore, the decision to terminate was appropriate given her intransigent stance regarding the relatively non-invasive requirement to take the POCT at home and advise the employer of the results.”

The termination of Poulos was warranted, the arbitrator concluded, in dismissing the grievance.

For more information see:

Poulos v Treasury Board (Regional Development Corporation), 2022 CanLII 37635 (NB LA)


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