On June 17, 2022, Arbitrator Nairn held in FCA Canada Inc. v Unifor, Locals 195, 444, 1285 that a two-dose mandatory vaccination policy (Policy) implemented by an employer was no longer reasonable going forward due to the evolving scientific evidence regarding the COVID-19 virus. In so finding, she cited a number of pre-print scientific studies (i.e. those not yet subjected to peer review) with respect to the efficacy of vaccinations and the failure to establish a notable difference in degree of risk transmission between the vaccinated and unvaccinated. She also noted that the Policy did not incorporate a periodic review, a mechanism she stated would be prudent in a vaccine policy.
The Arbitrator provided the employer with a window to address and update the Policy given her decision.
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 at the employer's work sites. Proof of vaccination status was required. A statutory duty to accommodate those employees who had appropriately established medical or religious exemptions from vaccination for COVID-19 was acknowledged and supported by the Policy. The Policy, applied nationally, was developed following extensive review of scientific literature, government guidance both provincial and federal, best practices within the industry, and discussions with internal corporate medical and legal personnel.
The Policy was released on October 14, 2021, following discussions with the National Union, which publicly supported the Policy and which adopted its own mandatory vaccination policy for its employees.
Part of the Policy stipulated that employees may be subject to discipline up to and including termination of employment for non-compliance. Between October 26 and November 12, 2021, the employer issued five communications to employees regarding the Policy, setting out the employer's expectations and key dates. The employer shared various educational resources and information regarding COVID-19 vaccines with employees who were not fully vaccinated, as well as reminders that failing to become fully vaccinated in accordance with the Policy would result in an unpaid leave of absence.
On December 31, 2021, the employer placed those employees who were not in compliance with the Policy on an unpaid leave.
The Arbitrator reviewed the Policy, public health guidelines, relevant case law, the KVP principles and the nature of the employer's operations, among other things. She made the following findings:
- The Policy was reasonable, enforceable, and compliant with both the Ontario Human Rights Code, the Occupational Health and Safety Act and the collective agreement.
- By introducing the Policy the employer had taken every precaution reasonable in the circumstances for the protection of its workers as mandated by the Occupational Health and Safety Act.
- There is no "right" to remain unvaccinated and remain in active employment. 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.
- A testing regime was not a reasonable alternative to vaccination.
- The employer adapted and adjusted its protective requirements, such as temperature checks and masking mandates, and it could institute further measures if reasonably warranted.
- The employer acted reasonably (per the KVP principles) in unilaterally introducing the Policy.
- The evidence overwhelmingly supported 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.
The Arbitrator then discussed the emerging scientific evidence regarding the efficacy of COVID-19 vaccines. Despite the findings above, and with "personal reservation," the Arbitrator nonetheless concluded:
- ... I hereby find that a COVID-19 vaccine mandate defined as requiring two doses (of a two-dose vaccine) is no longer reasonable based on the evidence supporting the waning efficacy of that vaccination status and the failure to establish that there is any notable difference in the degree of risk of transmission of the virus as between the vaccinated (as defined in the Policy) and the unvaccinated. Rather, the evidence supports a conclusion that there is negligible difference in the risk of transmission in respect of Omicron as between a two-dose vaccine regimen and remaining unvaccinated. There is, under the definition in the Policy, no longer a basis for removing unvaccinated employees from the workplace. While the Union would argue that such a conclusion was available in December 2021, I disagree. More evidence was required of both the waning efficacy of the two-dose regimen against Omicron and the relative risks of transmission before that conclusion could responsibly or reasonably be drawn, given the history of this virus. Where matters of health and safety are involved, it is not unreasonable to err on the side of caution.
Vaccination policies will continue to be assessed on a case-by-case basis. This decision has raised concerns in both the employer and arbitrator community and will be given a close read in the decisions that follow it. The decision remains an exception to the general acceptance of vaccination policies by the arbitral community.
While it is not yet clear if the decision will the subject of a judicial review, it is clear that proper scientific expert evidence will be required in the fulsome defence of the continued application of vaccination policies, particularly throughout the Fall given the potential for an additional wave of the pandemic.
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