'We're going to see arbitrators put employers to the test on an ongoing basis'
“It's important for employers to keep in mind that arbitrators will continually assess the reasonableness of a policy – particularly one that mandates employees take some sort of medical action – against the effectiveness of that medical action and the intrusiveness of the policy on employees.”
So says Rich Appiah, employment lawyer and principal of Appiah Law in Toronto, after an Ontario arbitrator found that an automaker’s vaccination policy wasn’t enforceable in the current circumstances of the pandemic – even though the policy was reasonable at the time it was developed and implemented.
“Over the course of the pandemic, as it continues, we're going to see arbitrators put employers to the test of demonstrating on an ongoing basis that the policies they're implementing are reasonable for the circumstances at issue,” says Appiah.
Safety protocols
FCA Canada was a Canadian automaker that became part of multinational auto company Stellantis in 2021 and became known as Stellantis Canada. The company operates vehicle assembly plants in Windsor and Brampton, Ont., employing nearly 6,000 people.
The assembly plants feature complex production lines with many workstations, some involving two or more employees working closely together. All employees access the plants through turnstiles and use changerooms, which can feature many people in close proximity to each other at certain times of the day.
Both assembly plants operated throughout the pandemic as essential services except for a two-month shutdown at the beginning of the pandemic from March to May 2020. Stellantis implemented several health and safety protocols in the plants, such as physical distancing, physical barriers, sanitization, and personal protective equipment.
In August 2021, shortly after the fourth wave of the pandemic began in Ontario featuring the Delta variant of COVID-19, the provincial government made vaccination policies mandatory for high-risk settings such as hospitals, care service providers, retirement homes, shelters, and post-secondary institutions. A short time later, local public health units recommended employers implement vaccination policies.
In October, Stellantis introduced a workplace vaccination policy after discussions with the union. The policy required employees to disclose their vaccination status and have received the two-dose vaccination regimen by Dec. 31 or be placed on an unpaid leave of absence. Elsewhere in the policy it stated that employees might be subject to discipline up to or including dismissal.
In December, the Omicron variant brought in the fifth wave of the pandemic in Ontario. The new variant was more transmissible and data suggested a significant reduction in vaccine efficacy against Omicron, although vaccines were still recommended to protect against severe illness. After Jan. 1, 2022, more than 800 cases of COVID-19 were reported at Stellantis’ Windsor and Brampton plants, compared to less than 300 during the entire pandemic before that date.
By the policy deadline, just over five percent of employees at the plants were either unvaccinated or didn’t disclose their status. All were placed on unpaid leave and none were terminated.
Waning efficacy of two-dose vaccination
The union filed a grievance arguing that the vaccination policy wasn’t reasonable, as scientific evidence indicated that the required two-dose vaccination wasn’t effective against the spread of the Omicron variant. As a result, the vaccine mandate wouldn’t achieve the goal of providing protection for employees in the workplace from infection and therefore did not appropriately balance the interests of unvaccinated employees with the need for a safe and healthy workplace, the union said.
The union also argued that imposing the mandate in the new wave was a repudiation of a commitment to adapt to the changing dynamics of the pandemic enshrined in the collective agreement, as the employer’s rationale for the policy was based on outdated pre-Omicron data that was no longer relevant.
The arbitrator disagreed with the union that Stellantis repudiated the collective agreement, as the company worked with the union in developing the policy, responded to concerns, and tried to balance the various interests of all parties in the circumstances.
The arbitrator found that the policy was brought to the attention of the union and employees before it was implemented and consulted the union during the development. Stellantis also informed employees in advance of the consequences of non-compliance and consistently enforced the policy, so there was no breach of the collective agreement and the company reasonably exercised its management rights, said the arbitrator.
The arbitrator noted that the policy was reasonable at the time it was developed and implemented – its purpose was to protect employee safety, it followed public health advice, it restricted the handling of employees’ vaccine status information, it acknowledged human rights-related exceptions, and alternative measures such as testing were not reasonable alternatives to vaccination.
Read more: A BC employer’s mandatory vaccination policy was reasonable, but disciplining or terminating employees for non-compliance was not, an arbitrator found.
Management rights
“The workplace context of this particular employer favoured the implementation of a policy, given that so many employees had to attend at the workplace and could not work from home,” says Appiah. “Ultimately, the collective agreement didn't require the employer to seek the permission of the union in implementing the policy itself – it was within management rights to implement the policy.”
In addition, the arbitrator said that there was no right to remain unvaccinated and stay actively employed – the right was to make a personal choice to remain unvaccinated and experience the impacts of that choice, such as being put on unpaid leave.
However, the arbitrator noted that the circumstances of the pandemic were changing when the Stellantis policy came into effect on Dec. 31, 2021. The Omicron wave had arrived in Ontario and various studies indicated that the efficacy of two-dose vaccination was decreasing, particularly in terms of the difference in viral loads and transmissibility between vaccinated and non-vaccinated individuals.
In addition, there were significantly more positive cases in the assembly plants after unvaccinated employees were removed from the workplace as of Jan. 1, 2022, the arbitrator said.
The arbitrator determined that the policy was no longer reasonable given “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.” As a result, non-compliant employees should be returned to the workplace, the arbitrator said.
No mechanism to adapt to changing circumstances
The arbitrator added that the vaccination policy did not incorporate a period review of the changing circumstances and risk, and suggested that such a mechanism and a change in the circumstances could re-establish the reasonableness of the policy.
Appiah says that the most pressing concern of the arbitrator was that lack of mechanism for an ongoing review of the science and circumstances around the pandemic that would allow the policy to adapt.
“It was a standing policy, no matter what developments were ongoing with respect to the pandemic or the COVID-19 virus, so I think what the employer could have done differently is just ensure that there was some form of ongoing review,” says Appiah.
“Generally speaking, in my view, where you've got any policy based on exigent circumstances, an employer should have a policy that is responsive to those exigent circumstances and changes as the exigent circumstances change – in this case, the policy fell short.”
Read more: A group of 20 workers have launched a lawsuit against the City of Windsor after they were fired for non-compliance with the city’s vaccination policy.
However, in light of that concern, the decision seems to have left the door open to re-establish the policy, adds Appiah.
“The union obviously had a concern about the intrusiveness of the policy, particularly given the context of the Omicron version of the virus,” he says. “But it seems to me, based on the arbitrator’s decision, if the policy had been more restrictive – that it required a two-dose vaccination plus boosters that would enhance the efficacy of the vaccine – then the policy would have passed muster.”
“So interestingly, a more stringent vaccine policy may have won the arbitration [for] the employer.”
See FCA Canada Inc. and Unifor, Local 195 (COVID-19 vaccine mandate), Re, 2022 CarswellOnt 10587.
