Since the emergence of the Omicron variant of the COVID-19 virus, there have been concerns among employers about waning vaccine. They are worried that waning efficacy could affect the enforceability of COVID-19 vaccination policies that require employers to receive only two-doses of the vaccine (a “primary series”) and not a booster. While initial case law from the start of the Summer stoked these fears, more recently case law has reverted to finding two-dose policies to still be enforceable as we enter the Fall.
Arbitrator Nairn Strikes Down a Two Dose Policy in June
At the start of the summer, a legal decision by Arbitrator Nairn in FCA Canada Inc. v Unifor, Locals 195, 444, 1285 found that as of June 24, a vaccination policy requiring only two-doses of a COVID-19 vaccine would no longer be enforceable. This was because the evidence before her showed that two doses of the vaccine was no longer effective at preventing transmission as compared to being unvaccinated. We previously wrote about this decision in early July.
Arbitrator Rogers Upholds a Two Dose Policy in August
On August 26, 2022, however, Arbitrator Derek L. Rogers in Toronto Professional Fire Fighters’ Association, IAAF Local 3888 v. City of Toronto (Re: Mandatory Vaccine Policy Grievance) took a different approach. His decision considered a two-dose vaccination policy issued by the City of Toronto and requiring staff to become vaccinated or be placed on an unpaid leave of absence (followed by automatic dismissal).
Arbitrator Rogers upheld the two-dose or unpaid leave portion of the policy. This was based upon expert evidence provided by Dr. Peter Jüni (former head of the Ontario Provincial Science Advisory Table), which provided support for the continued efficacy of two doses of a COVID-19 vaccine in preventing serious COVID-19 outcomes and reducing COVID-19 transmission. This was despite new strains of the Omicron variant and despite waning vaccine efficacy. Arbitrator Rogers noted that Arbitrator Nairn’s decision may simply have been based on the differing evidence before her.
Now, despite this, Rogers struck down the automatic termination portions of the policy (similar to other, previous decisions). Automatic discipline is not an appropriate response to non-compliance in a union setting. The arbitrator also showed some skepticism that discipline would ever be appropriate in some cases, particularly where employees are merely afraid of the vaccine. Ultimately though, he did not have to consider this question, since the discipline portion of the policy was unreasonable as is.
Arbitrator Herman Upholds a Two Dose Policy in September
Following this case, on September 12, 2022, Arbitrator Robert Herman released his decision in Coca-Cola Canada Bottling Limited v United Food and Commercial Workers Union Canada, Local 175. In this case, he considered a COVID-19 vaccination policy requiring only two doses and where non-compliant employees would be placed on an unpaid leave of absence and might eventually face discipline.
Again, on the basis of expert evidence before him, Arbitrator Herman refused to follow the earlier decision of Arbitrator Nairn. Instead, he upheld the two-dose vaccination policy. The Arbitrator found that two-doses of the vaccine remained effective at protecting the recipient from serious COVID-19 outcomes and in reducing the transmission of COVID-19 as compared to being unvaccinated. While a booster policy would be more effective, this did not render the vaccine policy unreasonable. He found that Arbitrator Nairn was not correct in her interpretation of the evidence before her about the loss in vaccine efficacy, perhaps because she had not had expert evidence to guide her in interpreting that evidence.
In addition, Arbitrator Herman upheld the portion of the policy that warned discipline might eventually result from non-compliance. He rejected the Union’s argument that an employee could never be disciplined for this. In fact, the Arbitrator (who has said this in earlier cases as well) stated that in principle a reasonable vaccine policy can be enforced with discipline up to termination, depending on the individual facts of each case. This was in line with the general approach to enforcing employer policies. The key was to consider the individual facts and circumstances of each case to see if there was just cause for discipline.
In considering this issue, Arbitrator Herman gave some examples of the circumstances where he might see discipline as being appropriate, including:
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- Refusal by an employee to comply with a vaccine policy for an extended period of time;
- Where continued indefinite leaves of absence without pay would result in a material negative impact on the ability of an employer to effectively operate its business.
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The Takeaway for Employers
The two new cases from Arbitrator Rogers and Herman breath new life into two-dose vaccination policies that remain in place going into the Fall. While policies requiring a booster dose remain more effective and thus more defensible, we also know that many employers have been struggling with the possible staffing implications of these more extensive policies. Those who chose to keep their two dose policies at the start of the Summer as a way to balance these competing needs can now breathe a little easier with these two new decisions.
However, it is less clear when and whether discipline or dismissal will be a reasonable consequence for non-compliance. There is a growing consensus that automatic discipline will not be an appropriate measure. The inclusion in a policy of a warning of possible discipline remains largely uncontroversial at this point. However, as can be seen in the divide between Rogers and Herman above, there is not yet a consensus on when these clauses can be applied. Generally speaking, employers are advised to continue showing caution in applying discipline for non-compliance to a vaccination policy and to obtain legal advice before doing so.
PooranLaw will continue to monitor legal developments related to workplace vaccination policies and provide updates online. In the meantime, if you require legal assistance in determining how these policies apply to your organization, 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.
