Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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14 www.lexpert.ca Special Promotional Feature IN 2021, many employers implemented vaccination policies to encourage and, in some cases, require employees to be vaccinated against COVID-19. Since that time, with the arrival of the Omicron variant last winter, the elimination of most public restrictions this spring, and the in-person return to school and work for many this fall, the legality of COVID-19 vaccination policies has come under increased scrutiny. In Canada, the leading arbitral and court decisions signal that mandatory vaccination policies will continue to be enforceable in appropriate circumstances. Vaccinate or unpaid leave In the unionized context, 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. manufacturing 1 )or there is a higher risk of transmission or a vulnerable population (e.g. retirement home 2 or school 3 ), 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 dose and booster dose of the vaccine. e employer was an energy distribution company with some employees working indoors in an office and others working in the field, at home, or outdoors. e 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 MANDATORY VACCINATION POLICIES: WHERE DO WE STAND? 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 Re- tirement Residence v. UFCW, Local 175 5 (re- tirement home) and Maple Leaf Foods Inc. v. UFCW, Local 175 6 (food manufacturing fa- cility), the arbitrator held that a primary series vaccination-or-unpaid-leave policy was reason- able as of April 2022. Similarly, in Alectra Utilities Corporation v. Power Workers' Union, 7 the arbitrator upheld a vaccination policy in June 2022, despite recog- nizing that protection from the vaccine waned over time. e arbitrator was satisfied that those who remained unvaccinated created an increased risk for those who were vaccinated. By contrast, in FCA Canada Inc. v. UNI- FOR, Locals 1, 444, 1285, 8 Arbitrator Nairn found that a vaccination-or-unpaid-leave poli- cy 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 in- creased 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 still offer some protection against Omicron. As such, the vaccination policy was reasonable as of September 2022. Vaccination-or-termination policy 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 for cause. e arbitrator found that termination for non-compliance was unreasonable because: • it did not allow for an assessment of individ- ual mitigating factors • there was no imminent health risk as unvac- cinated 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 decide wheth- er to become vaccinated to keep their job Regarding the latter point, the arbitrator le 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' Asso- ciation, IAAF Local 3888 v. Toronto (City), 11 the arbitrator found that keeping unvaccinat- ed employees out of the workplace on unpaid leave was reasonable but terminating them for refusing to be vaccinated was not. e arbitra- tor'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 12 found that a healthcare employer's termination of a substance abuse counsellor who refused to be vaccinated was reasonable. e BC Public Health Authority had issued an order that only vaccinated employees could work in a hospital but did not specify the consequences for non-compliance (i.e. unpaid leave or termination). e employer terminated the employee's employment, and the union grieved the termination. e arbitrator found the employer acted reasonably because there was no reasonably foreseeable prospect the MAJORITY OF MANDATORY VACCINATION POLICIES HAVE BEEN UPHELD, AS EFFECT OF PANDEMIC ON EMPLOYEES REMAINS FLUID