Williams HR Law LLP

ARBITRATOR FINDS EMPLOYER’S VACCINATION POLICY UNREASONABLE DUE TO EVOLVING COVID-19 CONTEXT AND ABSENCE OF PERIODIC REVIEW

July 5, 2022

In the decision of FCA Canada Inc v Unifor, Locals 195, 444, 1285, 2022 [FCA Canada], Arbitrator Nairn held that the employer’s mandatory two-dose COVID-19 vaccination policy (the “Policy”) was no longer reasonable due to the evolving COVID-19 context. The Arbitrator relied on pre-print scientific studies to find there was a negligible difference of transmission between unvaccinated employees and those who received two doses of the vaccine. She also noted that the Policy had no periodic review, which would have been prudent to include.

Facts

The employer, FCA Canada Inc., is an automaker and a subsidiary of Stellantis, the parent company who implemented the Policy nationwide. The Policy required employees, contractors, suppliers, and visitors to be fully vaccinated by receiving two doses of the COVID-19 vaccine to attend the employer’s work sites. The Policy provided the employer with the right to discipline and dismiss employees for non-compliance.

The unions, including Unifor Locals 195, 444, and 1285 (the “Unions”), represented employees working at two sites for the employer. The employees worked in conditions where physical distancing was not possible in certain circumstances and there was no option to work remotely.

Between late October and mid-November 2021, the employer issued five communications to employees outlining its expectations and key dates. On December 31, 2021, the employer placed 456 employees who were still unvaccinated, seeking a medical or religious exemption under the Policy, or not disclosing their vaccination status on an unpaid leave. No employees were dismissed.

The Union sought the suspension of the Policy from its inception and full compensation for all employees placed on unpaid leave.

The FCA Canada Decision

The Arbitrator found the Policy to be unreasonable, but noted the Policy could only be assessed as unreasonable given the recent shifts related to COVID-19. In so finding, she reviewed the Policy, the nature of the employer’s operations, public health guidelines, the KVP principles, and case law. The Arbitrator allowed the grievance in part, declaring the Policy to be of no force or effect as of June 25, 2022, and provided the employer with a period to update its Policy.

In her analysis, the Arbitrator recognized the severity of COVID-19, detailed the history of its variants, and assessed the evolving scientific evidence related to the transmissibility of COVID-19 among vaccinated and non-vaccinated populations. She acknowledged that the “pandemic was and is not over,” and that “[t]he evidence overwhelmingly supports a conclusion that vaccination against COVID-19 […] continues to be key in reducing serious outcomes from infection by the virus, regardless of the variant”.

The Arbitrator also affirmed there is no “right” to remain unvaccinated and remain in active employment, and that testing for COVID-19 was not a reasonable alternative to vaccination.

However, emerging evidence indicated two doses of the vaccine were significantly less effective in protecting against new variants compared to previous strains of COVID-19. The government had also removed COVID-19 restrictions over the last four months.

As the Policy represented a unilateral change introduced by the employer without the Unions’ agreement, the Arbitrator conducted an analysis using the KVP principles. The Arbitrator found the Policy was: consistent with the collective agreement; clear and unequivocal; brought to the employees’ attention before the employer acted on it; consistently enforced; and clear that non-compliance by employees could result in their dismissal. Notwithstanding these findings, the Policy was found to be unreasonable.

In determining that the Policy was unreasonable, the Arbitrator held that “context is crucial”. During her analysis, she did find the Policy was reasonable for a long period, as the Policy’s stated purpose was to protect employee safety, and the workplace’s physical layout and other characteristics increased the likelihood of transmissibility. The workplace also had only one outbreak, which the Arbitrator noted was a “testament to the measures instituted [and] would not preclude the employer from instituting further measures if reasonably warranted”.

Despite much of the context indicating the Policy was reasonable, the Arbitrator relied upon recent developments to find the Policy was no longer reasonable. These recent developments included the federal government suspending vaccine mandates for federal public servants and federally regulated employees, and scientific evidence indicating that “a two-dose vaccine regimen provides significantly less protection against infection from Omicron and its sub-variants than with prior variants”.

Further, despite the employer exercising its discretion to update the Policy several times since its implementation, the absence of a formalized periodic review of the Policy contributed to its unreasonableness.

Ultimately, it was reasonable for the employer to place the non-complying employees on unpaid leave for the period that the Policy was reasonable, but given recent developments, the Policy was no longer reasonable and would be of no force or effect as of June 25, 2022. As part of the remedy, the Arbitrator provided the employer with a short window to consider and address “whatever flows from this decision before the Policy is vacated.”

Takeaways

The FCA Canada decision represents a development in vaccination policy grievances, as arbitrators have previously been consistent in upholding mandatory vaccination policies as reasonable. However, the decision does not render all mandatory vaccination policies as prima facie unreasonable, and the Arbitrator emphasized that “[t]his decision should in no way be taken as support for remaining unvaccinated against COVID-19, absent a legitimate exemption”. Assessments of vaccination policies will continue to be made on a case-by-case basis.

As part of the remedy, the Arbitrator left open the potential for the employer to amend the Policy. In doing so, similarly situated employers should consider incorporating a formalized periodic review into their policies to bolster a finding of reasonableness.

Further, employers should consider changing their policy’s vaccination requirements to reflect the changing context of the pandemic, as the FCA Canada decision emphasized how arbitrators will consider the waning efficacy of a two-dose vaccination series. Employers with mandatory vaccination policies that define “fully vaccinated” as receiving only two doses should update their policies. The Arbitrator noted that booster shots have been confirmed to increase vaccine efficacy, which is consistent with the federal government’s position, as the government is planning on transitioning away from considering two-doses as “fully vaccinated”, and instead will adopt an “up to date” definition that accounts for boosters.

Expertise