A sign of the times?

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Two recent divergent decisions regarding Alectra Utilities’ and FCA Canada’s ability to uphold mandatory vaccination policies in the workplace underscore the need for organizations in Ontario to re-examine and, if necessary, update their respective policies. Photo credit: Twitter/Alectra Utilities 

 

Labour arbitrators remain the frontline decision-makers regarding workplaces and how they balance the needs of employers, employees, and the public in responding to the pandemic. Two recent arbitration decisions, while jointly recognizing the importance of vaccinations and agreeing that the pandemic was not over and COVID-19 testing regimes are not as effective as policies involving mandatory vaccination, had two arbitrators coming to opposite conclusions on whether to uphold an employer’s mandatory vaccination policy.    

In Alectra Utilities Corporation v. Power Workers’ Union the arbitrator on June 9 held true to the earlier arbitral decisions and upheld the employer’s mandatory vaccination policy as a reasonable exercise of management rights as it continues to provide meaningful protection to employees, 97 per cent of whom were vaccinated. 

Conversely, FCA Canada Inc. v. Unifor, Locals 195, 444, and 1285 the arbitrator on June 17 held that the employer’s mandatory vaccination policy was reasonable when it was introduced, however, struck it down on the basis that a COVID-19 vaccine mandate, defined as only requiring two-doses, was no longer reasonable. In doing so, she found that there was evidence of waning efficacy of a two-dose vaccination status and that there was a failure to establish a “notable difference in the degree of risk of transmission of the virus” between the vaccinated (as defined in the policy) and the unvaccinated, in a workplace with a 95 per cent vaccination rate. 

In addition to proportionately similar risks of employee exposure to the virus, in both cases the mandatory vaccination policies themselves shared the following similarities:

  1. Mandatory proof of vaccination status (two doses).
  2. Accommodation of unvaccinated workers based on medical and religious exemptions.
  3. Placement of unvaccinated employees in positions that require attendance at work on unpaid leave.

Similarly, the parties’ agreement that: (a) the reasonableness analysis should balance the unvaccinated employees’ interests in personal autonomy, bodily integrity, and remaining in active employment with the employer’s duty to safeguard the health and safety of all employees in the workplace; and (b) the following factors should be considered in assessing the reasonableness of their mandatory vaccination policies, with the second one being the primary focus:

  1. The rule must be consistent with the collective agreement;   
  2. The rule must be reasonable;
  3. The rule must be clear and unequivocal.
  4. The rule must be brought to the attention of the employee before it can be acted on;
  5. The employee concerned must have been notified that a breach of the rule could result in their discharge if that is its consequence; and
  6. The rule must be consistently enforced from the time it was introduced. 

So why the different outcome?

In Alectra, while the arbitrator recognized that unvaccinated employees would be “deprived of an opportunity to work in the context of a personal decision about a medical procedure” under the policy, this interest was outweighed by the interest against the risk to the health of others, which is “an extraordinarily significant matter” when taking into consideration the following facts: (a)  the two-dose vaccination loses effectiveness overtime; (b) those who are unvaccinated create a risk for those who are vaccinated where there is congregation; (c) vaccination importance is not negated by the fact that other employers have rescinded vaccine mandates and/or that public health standards have relaxed; and (d) the prevalence of the highly infectious Omicron variant increases the importance of vaccination as the primary method of protection from COVID-19 transmission at the workplace.

In FCA Canada, the arbitrator began her analysis by observing that the positivity rate in the workplaces had increased and like the arbitrator in Alectra found that vaccination continues to be key in reducing serious outcomes from infection and rejected the union’s arguments that changing policies at other workplaces and at the government level meant that the policy must be lifted. However, unlike in the Alectra decision, the arbitrator accepted the union’s argument that full vaccination, defined as two doses, had become ineffective in curbing transmission post-Omicron and therefore was no longer reasonable given with the Omicron variant there was a negligible difference in the risk of transmission between those vaccinated with two-doses and the unvaccinated employees.

Takeaways: 

Both decisions’ underlying messages to employers, and the natural outcome of Unifor’s successful argument that full vaccination, currently defined as two doses, is ineffective in the current circumstances, are:

1) To re-visit mandatory vaccination policies as circumstances change (as with all policies); and 

2) Consider implementing three-dose mandatory vaccination policies (i.e., amending their definition of “fully vaccinated”).  

 

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