As Canada continues to move further away from the worst of the pandemic, it is likely some employers may begin to remove mandatory vaccination policies. Originally, they were put in place to prevent the spread of a potentially deadly disease in the workplace, providing employees with an added layer of protection. You can read more about decisions regarding vaccination policies here, here, here, here, and here. However, even in the case of a mandatory vaccination policy currently remaining in place, there is a new decision regarding the reasonableness of such a policy. This is one of many decisions on the issue, with most outcomes favouring vaccination policies being reasonable.
FCA Canada Inc. v Unifor, Locals 195, 444, 1285: The Facts
On October 14, 2021, FCA Canada released their policy regarding the COVID-19 vaccination and employment contracts. The Policy – which was supported by the union at the time – made it mandatory for all employees to be fully vaccinated, which was defined as receiving two doses of an approved COVID-19 vaccine. Proof of being fully vaccinated was also required. This Policy was created based on scientific evidence and with the help of legal personnel. Moreover, by October of 2021, vaccines had already been readily available for multiple months. The first section of the Policy made reference to the Employers’ statutory obligation under the Ontario Occupational Health and Safety Act (“OHSA”) to take “every precaution reasonable in the circumstance” to provide a safe environment for employees and visitors, which includes against deadly viruses such as COVID-19.
Between October 26 and November 12, 2021, numerous communications were made by the employer to the employees which set out the expectations of the policy and relevant dates. The employer also shared various educational resources and information with the remaining unvaccinated employees.
As of December 31, 2021, those employees who chose not to receive the vaccine, and thus not to comply with the policy, were placed on unpaid leave.
The Arbitrators Decision: Two-Dose Vaccination Policy No Longer Reasonable
On June 17, 2022, Arbitrator Nairn held that the two-dose vaccination policy was no longer reasonable as the scientific evidence had evolved to the point where two doses of the vaccine no longer proved to effectively reduce the spread of the virus in its current state. The mutated version of COVID-19, known as the Omicron variant has resulted in a lesser degree of effectiveness at preventing infection and transmission. Its effectiveness also severely wanes after multiple weeks. Thus, requiring employees to be fully vaccinated was no longer considered reasonable. Moreover, the Arbitrator also stated that the Policy lacked a periodic review mechanism, which would allow for the Employer to change its policy based on the most up-to-date scientific evidence. For instance, as of December 2021, when the employees were first placed on unpaid leave, the Policy was still reasonable based on the characteristics of the virus, and how the Policy was still effective at reducing spread and providing a layer of security. Arbitrator Nairn notes that having a mechanism in place for reviewing the Policy’s merits based on the relevant scientific evidence, would have better positioned them to achieve the reasonable standard for their Policy.
While this is just one decision that states a two-dose vaccination policy is not reasonable, it is highly relevant due to the recency of the decision.