How should HR stay up to date on vaccine effectiveness?

B.C. arbitrator cites 'incontestable' evidence to decide Purolator waited too long to change its vaccine mandates

How should HR stay up to date on vaccine effectiveness?

A recent arbitration decision out of B.C. “may indicate a turning of the tide” in finding that mandatory vaccination policies were no longer reasonable after 2022, according to Cameron Wardell, a partner at Mathews, Dinsdale & Clark in Vancouver.

“For employers generally, [it’s] a reminder/caution to be continuously monitoring and reassessing the reasonableness of policies that were implemented based on an incomplete or changing set of facts/information.”

Suzanne Anton, former Minister of Justice and Attorney General of British Columbia, agrees that it’s an important decision.

“The logic of this decision is so precise and so detailed, and so strongly based on the evidence that is in front of [the arbitrator] that I think that another court here in BC... would make the same decision,” she says.

But the ruling also raises a key question: What evidence or guidance is HR expected to follow in developing and assessing policies around vaccine mandates?

Purolator implements vaccine policy

In September 2021, during the COVID-19 pandemic, Purolator implemented a Safer Workplaces Policy across its Canadian operations, requiring all employees to be vaccinated by Dec. 25, 2021.

A number of union members and owner operators elected not to be vaccinated and later filed a group/policy grievance, saying they were improperly terminated or placed on involuntary, unpaid leaves of absence because of the policy.

In assessing the context of the grievances, arbitrator Nicholas Glass said COVID-19 vaccinations “contributed to some level of containment of the spread of the disease” but by the fall of 2021, “there was an unexpected and dramatic rise in the number of infections in highly vaccinated countries. Vaccination did not seem to be winning. It was not containing the spread of Omicron.”

Further, by the spring of 2022, there was “a massive drop in two-dose vaccine effectiveness,” he said in his Dec. 14, 2023 decision.

“It took some time for this pattern to emerge as an incontestable fact no longer justifying the precautionary principle which had been a key element in the reasonableness of vaccine mandates, as data had to be gathered and cohorts of vaccinated and unvaccinated individuals infected with Omicron had to be identified in order for there to be anything to analyze.”

Arbitrator looks at effectiveness of policy for workplace safety

While it was reasonable for Purolator to impose vaccine mandates in the winter of 2021-22, according to the medical data and public health guidance at that time, that was no longer the case by late spring 2022, said Glass.

“The balancing exercise in question required the employer to participate in a continuing assessment of the effectiveness of its policy in achieving its goals and furthering its interests as against the interests of the affected employees,” he said.

“The effectiveness of the policy to achieve the employer’s goals of improved workplace safety reached a point at which the interests of the unvaccinated workers in personal autonomy and bodily integrity as well as their interests in maintaining their livelihood outweighed the interests of the employer.”

As a result, Glass concluded Purolator unjustly terminated the employment of owner-operators and placed hourly members on unpaid leave who refused to get vaccinated; the grievors were to be compensated for lost wages and benefits.

Mixed views of evidence for vaccine effectiveness

According to Glass, Purolator’s policy was initially reasonable based on medical data and public health guidance available up to the spring of 2022, says Wardell, at which time “growing awareness of vaccine ineffectiveness” graduated to “acknowledgement of an incontestable fact.”

The arbitrator compared the expert evidence presented and stated that the employer expert “equivocated” and failed to give a responsive answer regarding why he labelled vaccines as giving “some protection” while their report acknowledged that the vaccine “did not provide good protection” against Omicron specifically, says Wardell.

“Glass preferred the evidence of the union doctor who said any increase in protection emanating from the vaccine was ‘statistically insignificant.’”

But Wardell expressed doubts.

“I would place a huge asterisk here as my understanding is and remains that vaccines are highly effective tools in the battle against disease, and that they were instrumental to the saving of thousands (more?) of lives in British Columbia and beyond during the pandemic,” he says.

“Glass leans heavily on the medical evidence he has that shows that the vaccines were no longer effective against spread generally, while disregarding that that same evidence also showed they did reduce the risk of extreme outcomes, really, really negative outcomes.”

What’s impressive about this case is that the arbitrator heard “real evidence” from an expert, says Anton, citing Shirin Kalyan, a translational immunologist with a PhD from UBC in infectious diseases, Department of Experimental Medicine.

“[Glass] was satisfied that the evidence had established that the first course of vaccines… their efficacy had worn off by then. And so there was no logic to keeping the employees off work, none,” she says.

“The conclusion he reached was that to have vaccinated or an unvaccinated employee posed equal risk to anyone else. In other words, there's no difference between a vaccinated person and unvaccinated person after that length of time after they've had the vaccines.”

Glass also stated that the evidence of B.C.’s public health officer in September 2022 was “wholly inconsistent with the preponderance of material that I have been presented with,” says Anton, which is a “remarkable” opinion because, previously, courts and arbitrators have been “extremely deferential” to public health officials.

Staying up to date on medical advances

Of course, many employers relied on the guidance from public health authorities during the pandemic when it came to formulating and modifying their policies, says Anton, who says it’s wrong that health care professionals in B.C. still face vaccine mandates.

The Purolator decision itself “is not skeptical that public health advice is something that people are entitled to take notice of and pay attention to and act accordingly,” she says, “however, if they're going to do that, they have to keep paying attention.”

Glass said that Purolator was “a large, sophisticated employer” with a full-time medical director and it received regular reports on the subject from a contracted medical provider, the Cleveland Clinic, so it had “an opportunity to achieve a level of awareness with respect to the evolution of vaccine effectiveness that should be somewhat greater than average,” she says.

And by the spring of 2022, the public health advice had changed nationally, though not in B.C., she says, so by March 2022, Purolator should have known than the efficacy of the vaccines had waned, according to Glass.

“He actually gives them a little break till the end of June of 2022,” says Anton. “He says that that's when they should have changed their views and allowed their workers back. But they didn't. They went all the way up to June of 2023.”

‘Erring on the side of safety’

While it was unhelpful that Purolator hadn't adapted its vaccination policy in line with science that was coming out, says Wardell, “I find it hard to fault them when they're erring on the side of safety,” he says.

“Everybody remembers how difficult it was to keep up with things, and how there would be something one day and then another thing two days later, and it was a real challenge in adapting to everything in that circumstance. I worked with a lot of employers who worked very, very, very diligently to keep up with things.”

While it’s important to be aware of the authorities to assess whether a policy will likely be upheld or not, says Wardell, “employers must also be guided by the available medical data and public health guidance in determining what is appropriate for their particular workplace — especially as the latter tends to evolve and become available in a more timely manner than court/arbitral decisions.”

Glass is setting a very high standard for employer responsiveness to changes in circumstances or science, says Wardell, adding that the science has always had room for debate, with earlier decisions erring on the side of safety. 

“But, particularly given arbitrator Glass’s comments in the Purolator decision, it is critical that employers stay up to date on the latest developments in the science and case law as both are constantly changing and can have significant impacts on the continuing reasonableness of an employer’s policies (and therefore its exposure and liabilities under such policies).”

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