Since December 2021 and the start of the Omicron wave of the COVID-19 pandemic, labour Arbitrators have generally been upholding mandatory vaccination policies as a reasonable workplace health and safety measure. However, a recent decision has indicated that this may not always be the case in the face of waning vaccine efficacy.
In this Insights article, we review the case of FCA Canada Inc. v Unifor, Locals 195, 444, 1285 released on June 17, 2022 by Arbitrator Marilyn A. Nairn. This decision found a vaccine policy requiring only a primary series of COVID-19 vaccines (but no boosters) was reasonable up until June 25, 2022, after which it would sunset. This was based on the idea that the primary series of vaccine are no longer effective at preventing Omicron variant transmission.
The Employer operated a number of manufacturing, warehouse, research and development, and other business ventures. The Union challenged a vaccination policy being applied in assembly plants manufacturing cars in Windsor and Brampton. Employees in these plants worked indoors in close contact with one another.
The Employer had dealt with major disruptions from COVID-19 during the pandemic and many employee infections. Their vaccination policy required employees to receive a primary series of a COVID-19 vaccine by December 31, 2021. Non-compliance resulted in an unpaid leave of absence. The policy also indicated that discipline up to termination could result if employees continue to be non-compliant with the vaccination policy, though no termination had occurred at the time of the decision. Ultimately 94.6% of employees in the relevant bargaining units became vaccinated.
The Union’s main argument in challenging the policy was that a primary series of the COVID-19 vaccines were not effective in preventing transmission of the Omicron variant. They argued that the policy should be struck down retroactive to January, with full compensation for employees placed on a leave.
This case turned on the evidence before the Arbitrator on the efficacy of COVID-19 vaccines. The key finding was that a primary series of a COVID-19 vaccine (e.g. two doses of a two dose series) would generally lose efficacy in preventing transmission (though not serious illness) of the Omicron variant by May 2022. The Arbitrator cited a number of studies available between December 2021 and May 2022, which supported this finding while indicating that booster doses maintained efficacy against transmission. In that case, efficacy means the ability to stop an infection (and presumably transmission).
This loss of efficacy was important, because the Arbitrator otherwise acknowledged the ongoing risks of the pandemic and the initial protection that two doses of the vaccine offered. This initial efficacy and the real risk it faced led her to conclude that the policy had been reasonable over the winter and spring. However, the evidence of waning efficacy resulted in the Arbitrator holding that the policy was no longer reasonable, and set a date of June 25, 2022 when it would cease to be effective. Implied in this ruling was that the employer may still be able to justify a vaccination policy if it required booster doses.
What Does This Mean For Employers?
The decision increases the risk of maintaining a COVID-19 vaccination policy past June if it does not require booster doses. While it may not be followed by other arbitrators (recent decisions have gone the other way), it does shift away from a near consensus view in the case law so far.
In light of this decision then, it may be time for employers to consider if two-dose policies should be updated to mitigate loss past the end of June – either by lifting them or imposing three dose policies. While it is likely that vaccination policies that do not require boosters will be reasonable prior to the end of June, afterwards an Arbitrator may be more likely to order reinstatement of employees with retroactive wages from that point on.
PooranLaw will continue to monitor the ongoing legal developments related to COVID-19. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.