Much has happened since our first article on mandatory vaccination policies, published in January 2022. At the time, the Omicron variant was sweeping across Canada and courts and arbitrators had begun to weigh in on the legality of policies requiring employees to be vaccinated against COVID-19. Since then, with the easing of public restrictions and people going back to school and the workplace, mandatory vaccination policies have come under renewed scrutiny.
While courts have been relatively quiet on the issue, there are now several arbitration decisions where arbitrators have found as “reasonable” policies that hold unvaccinated employees out of work on an unpaid leave. By contrast, vaccination-or-termination policies have received a less consistent reception.
Let’s look at some of the leading decisions.
Arbitrators have generally found that a policy is reasonable if it requires an employee to be vaccinated, failing which they will be placed on an unpaid leave. When assessing reasonableness, the nature of the workplace and associated risk of exposure are key factors. For example, if the workplace is indoors and employees are required to work in-person (e.g., manufacturing1), or there is a higher risk of transmission or a vulnerable population (e.g., retirement home2 or school3), a vaccinate-or-unpaid leave policy is more likely to be reasonable.
In PWU v Elexicon Energy Inc,4 the policy required employees to receive both a primary course and booster dose of vaccine. The employer was an energy distribution company with employees working indoors in an office, in the field, at home or outdoors. The arbitrator found the policy was reasonable for employees who work indoors because the policy was consistent with the employer’s obligation to take every precaution reasonable in the circumstances to protect workers, and rapid antigen testing was not a reasonable alternative. However, the arbitrator found the policy to be unreasonable for employees who work from home or exclusively outdoors.
Is mandating only a primary vaccine series still reasonable?
With the emergence of the Omicron variants and evolving science regarding the efficacy of a primary series of vaccine, arbitrators are being asked to consider whether a vaccine policy mandating two doses remains reasonable.
In each of Extendicare Lynde Creek Retirement Residence v UFCW, Local 1755 (retirement home) and Maple Leaf Foods Inc v UFCW, Local 1756 (food manufacturing facility), the arbitrator held that a primary series vaccination-or-unpaid leave policy was reasonable as of April, 2022.
In Alectra Utilities Corporation v Power Workers’ Union,7 the arbitrator upheld a similar vaccination policy in June 2022, despite recognizing that protection from the vaccine waned over time. The arbitrator was satisfied that those who remained unvaccinated created an increased risk for those who were vaccinated.
By contrast, in FCA Canada Inc v UNIFOR, Locals 1, 444, 1285,8 Arbitrator Nairn found that a vaccination-or-unpaid leave policy which was reasonable initially, was no longer reasonable as of June, 2022. Arbitrator Nairn relied on a study she interpreted as stating that a primary series of vaccine does not offer increased protection against Omicron.
However, in a subsequent arbitration, Coca-Cola Canada Bottling Ltd v UFCW, Local 175,9 the arbitrator found that Arbitrator Nairn had misinterpreted the study, and that a two-dose series did offer some protection against Omicron. As such, that vaccination policy was still reasonable as of September, 2022.
Arbitrators are less consistent when the policy mandates termination of employment rather than unpaid leave.
In Chartwell Housing Reit v HOPE, Local 2220,10 the mandatory vaccination policy first placed employees who refused vaccination on unpaid leave and subsequently, if the refusal continued, terminated their employment. The arbitrator found that termination for non-compliance was unreasonable because:
- it did not allow for an individual assessment of mitigating factors
- there was no imminent health risk as unvaccinated employees were out of the workplace
- recognizing the fluidity of the pandemic, the policy did not give employees on leave enough time (two months) to make a decision about whether to become vaccinated to keep their job.
Regarding the latter point, the arbitrator left open the possibility that termination could be appropriate at some point, but did not specify when that point might be.
In Toronto Professional Fire Fighters’ Association, IAAF Local 3888 v Toronto (City),11 the arbitrator found that keeping unvaccinated employees out of the workplace on unpaid leave was reasonable, but terminating them for refusing to be vaccinated was not. The arbitrator’s primary reasoning was that terminating an employee offered no additional protection against COVID-19 than if they were put on unpaid leave.
By contrast, an arbitrator in British Columbia found that a healthcare employer’s termination of a substance abuse counsellor who refused to be vaccinated was reasonable. The B.C. Public Health Authority had issued an order that no unvaccinated employee could work in a hospital, but did not specify the consequences for non-compliance (i.e., unpaid leave or termination). The employer terminated the employee’s employment and the union grieved the termination. The arbitrator found the employer acted reasonably because there was no reasonably foreseeable prospect the employee would return to work; the employee refused to be vaccinated; and there was no evidence as to when the order would be lifted.
We will continue to follow these developments and keep our readers apprised.
To learn more and for assistance with any COVID-19-related workplace issue, contact Sherrard Kuzz LLP.
1UNIFOR, Local 973 v Coca-Cola Canada Bottling Ltd, 2022 CanLII 25769 (ON LA) (Wright).
2Revera Inc. (Brierwood Gardens et al.) v Christian Labour Association of Canada Award, 2022 CanLII 28657 (ON LA) (White).
3Toronto District School Board v CUPE, Local 4400, 2022 CanLII 22110 (ON LA) (Kaplan).
42022 CanLII 7228 (ON LA) (Mitchell).
52022 CarswellOnt 4662 (Raymond).
62022 CanLII 28285 (ON LA) (Chauvin).
72022 CanLII 50548 (ON LA) (Stewart).
82022 CanLII 52913 (ON LA) (Nairn).
92022 CanLII 83353 (ON LA) (Herman).
102022 CanLII 6832 (ON LA) (Misra).
112022 CanLII 78809 (ON LA) (Rogers).
12Fraser Health Authority v British Columbia General Employees’ Union, 2022 CanLII 25560 (BC LA) (Kandola).