Do you have a COVID-19 Vaccination Policy?
If yes, when was it last updated?
A recent decision confirms that employers should update their COVID-19 vaccination policies as the nature of the pandemic evolves with time. Otherwise, the policy may be found unreasonable and thus unenforceable.
The reasonableness of mandatory vaccination policies in the workplace have been assessed by several labour arbitration decisions. Generally, these decisions show that no one size fits all and that the context is key.
In FCA Canada Inc. v Unifor, Locals 195, 444, 1285, 2022 CanLII 52913 (ON LA), the employer had a COVID-19 policy mandating vaccines and the union challenged its reasonableness. Arbitrator Nairn found that the policy was unreasonable in the context of the workplace and the changing nature of the COVID-19 pandemic.
It is important to consider the context of this workplace. The Arbitrator noted:
The specific context of this workplace is reasonably comparable to those considered in Coca-Cola Bottling and Maple Leaf Foods, supra, where vaccine mandates were upheld. The vast majority of employees must attend at the workplace and cannot work from home. The workforce is large, the physical layout of the facilities is such that distancing cannot always be maintained and significant congestion at change of shift in entering and exiting the facilities cannot be prevented or ameliorated. A considerable number of the workstations require workers to be in close proximity even with adaptations. The security employees work throughout the WAP and also come into regular contact with suppliers and visitors.
The policy stated that:
- all employees must be fully vaccinated, which was defined as receiving two doses of the COVID-19 vaccine
- if an employee was not fully vaccinated, or failed to disclose their vaccination status, then the employee would be placed on an unpaid leave of absence and may be subject to disciplinary action, up to and including termination
Arbitrator Nairn noted that “the risks from contracting COVID-19 continue to outweigh the risks from the vaccine”. She considered the workplace context as well as the scientific evidence regarding the efficacy of two-doses against Omicron. Ultimately, she concluded 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.
Arbitrator Nairn held the policy to be of no force or effect as of June 25, 2022. However, she noted that “[t]his decision should in no way be taken as support for remaining unvaccinated against COVID-19, absent a legitimate exemption. The decision is referable to the particular circumstances of these workplaces over the relevant period, in relation to the Policy as written and the available science. Any or all of those circumstances may change.”
The Arbitrator recommended that employers provide “an acknowledged mechanism for ongoing, periodic review within a vaccine mandate policy.”
Best Practices for Employers
Employers would be wise to adapt workplace policies based on shifting needs. When it comes to vaccination policies, employers should ensure that such policies are not blindly followed for months on end, but rather, reviewed and updated from time to time given the changing nature of COVID-19. What was reasonable in November 2021 may not be reasonable in November 2022, because the circumstances were different and, in assessing whether a policy is reasonable, context is key!
So what should employers do?
- Seek legal advice from an Employment Lawyer with respect to your workplace policies
- If you have a COVID-19 vaccination policy in place, make sure it is reviewed periodically as circumstances change
- Consider whether your existing policies help ensure the health & safety of workers and visitors
- Consider the nature of your workplace and the nature of different employees’ roles, and what would be a reasonable policy to ensure a safe workplace
- Ensure your policies are compliant with human rights legislation
If you are an employer looking to review and update your existing policies, or prepare new policies, we would be happy to assist you. If you are an employee concerned about your employer’s policy or your safety at work, feel free to reach out to us so we can guide you through the process and ensure you get what you are entitled to.
