In a recent arbitral decision released on June 17, 2022, FCA Canada Inc. v. Unifor, Locals 195,444,1285, 2022 CanLII 52913 (ON LA), an arbitrator considered whether a mandatory vaccine policy, in a federally regulated workplace, ought to continue given the shifting nature of the pandemic. This was considered in the context of a unionized workplace.
The Employer’s Vaccination Policy (the “Policy) required employees, contractors, suppliers and visitors to be fully vaccinated (defined as two doses of a two-dose vaccine) in order to attend the workplace.
Arbitrator Nairn reviewed the generally accepted jurisprudence that has generally established an employer’s right to implement a mandator vaccine policy, if it is done so in in a reasonable manner to provide a safe workplace to employees.
The arbitrator reviewed the history of the pandemic, from the declaration of a pandemic in March 2020 by the World Health Organization, the various waves that have occurred, to March 2022, when vaccine mandates in schools, hospitals and long-term care homes were lifted. A statutory duty to accommodate those with religious or medical exemptions was specifically acknowledged in the Policy. The Policy also recognizes the statutory duty under the Occupational Health and Safety Act, to take “every precaution reasonable in the circumstances” to provide a safe workplace. Employees who failed to provide proof of vaccination were placed on an unpaid leave of absence, effective December 31, 2021.
The union argued that the evolution of the pandemic and the scientific evidence was that a mandatory vaccine policy would not achieve protection for workers in relation to the Omicron variant. Significant medical evidence was presented demonstrating a two-dose vaccine provided very little protection for employees in the workplace as it pertained to the predominant Omicron variant and therefore, the continuation of the policy failed to balance the interests of those who had chosen not to be vaccinated for various reasons with the responsibility to maintain a healthy workplace. The union sought the suspension of the Policy from its inception and full compensation for those placed on unpaid leave.
The employer argued that the Policy was reasonable and that while the science continues to evolve, vaccines remain the predominant effective measure against COVID-19, and that putting unvaccinated workers back in the workplace exposed those workers to a higher risk of infection and serious disease. The Employer acknowledged some evidence of waning vaccine efficacy, but argued that up to June 30, 2022, the Policy was necessary and reasonable.
The arbitrator accepted that the Policy was reasonable, and that the employer had the right under the management rights clause in the collective agreement to implement reasonable rules in the workplace and employee safety is a legitimate object of those rules. The arbitrator referenced the decision in Coca-Cola Bottling, where a vaccine mandate was upheld. The terms of the Policy were reasonable, and balanced. At paragraph 92, Arbitrator Nairn stated:
“I observe that there is no right to remain unvaccinated and remain in the workplace. The right is one of personal autonomy and bodily integrity, in this circumstance, having the choice to remain unvaccinated. Exercising that choice may give rise to other impacts. For every right there is a corresponding responsibility – the Employer has the right to make workplace rules but has the corresponding responsibility to ensure that those rules are reasonable. An employee has the right to remain unvaccinated but has a corresponding responsibility not to place co-workers at increased risk as a result.”
The arbitrator took judicial notice of the fact that the federal government announced on June 14, 2022, that it was lifting vaccine mandates for federal public services as of June 20, 2022. He also considered that as of April 14, 2022, the Ontario Science Advisory Table defines a “complete vaccine series as 2 doses in children, 3 doses in adolescents and adults, 4 doses in older adults and high-risk groups.”
The arbitrator concluded that the Policy, when introduced, was reasonable and continued to be reasonable in its application until June 25, 2022. The arbitrator concluded that a Policy which included a vaccine mandate, with “fully vaccinated” defined as a 2-dose regiment was no longer reasonable based on the evidence supporting waning efficacy of that vaccination status and the failure to establish that there was any notable difference in the degree of transmission of the virus between the vaccinated (as defined by the Policy) and the unvaccinated. The evidence supports a negligible difference in respect of the Omicron variant.
The arbitrator noted that based on the definition under the Policy, there was no longer any reasonable basis to remove the unvaccinated from the workplace. Despite this, the arbitrator rejected the request for any back pay and confirmed that the Policy was reasonable and appropriate. He noted that there was no provision in the Policy for a periodic review and that his decision was based on the Policy as written. He declared the Policy, introduced on October 24, 2021, to be of no force an effect, effective June 25, 2022. It seems that the Employer could revise the Policy and amend the definition of “fully vaccinated” to be more consistent with the definition as defined by the Ontario Science Advisory Table.
For employers, this case highlights the importance of periodic reviews and amendments to vaccine policies. The science surrounding COVID-19 has changed. In this case, an outdated definition of “fully vaccinated” resulted in the Policy being declared of no force and effect. Despite this, the arbitrator expressly recognized that the pandemic is not over and the evidence “overwhelmingly supports a conclusion that vaccination against COVID-19 has been and continues to be key in reducing serious outcomes from infection by the virus, regardless of the variant.” This statement is difficult to reconcile with the final decision to strike down the Policy, but it does serve as a reminder to keep vaccination policies updated.