Vaccine Mandate Update – August 2022

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In our July 2022, Vaccine Mandate Update, we wrote about the decision of Arbitrator Marilyn Nairn in FCA Canada Inc. v. Unifor, Locals 195,444,1285, in which she found that the employer’s mandatory vaccination policy, while reasonable at the time it was implemented, was no longer reasonable as of June 25, 2022. In this article, we review two new cases.  In the first, Wilfrid Laurier University and United Food and Commercial Workers Union, the university paused their mandatory policy on May 1, 2022.  As such, Arbitrator Mark Wright only considered whether the policy was reasonable up until that point.  In the second case, Toronto Professional Firefighters’ Association, IAFF Local 3888 and the City of Toronto, arbitrator Derek Rogers considered the ongoing reasonableness of a policy that was not paused.  He also considered the discipline imposed by the City of Toronto for non-compliant firefighters.

·         Wilfred Laurier University v United Food and Commercial Workers Union (Wright, July 22, 2022)

On September 22, 2021, Wilfrid Laurier University, implemented its university-wide COVID-19 Vaccination Policy in accordance with its August 13, 2021, announcement that it would be requiring “all students, staff and faculty to be fully vaccinated or to have plans to be fully vaccinated with an approved COVID-19 vaccine to return in-person” in the fall of 2021. The University also announced that as of September 7, 2021, all university members would be required to confirm their vaccination status in advance of attending at any of the University’s locations.

In making the decision to create and implement its Policy, the University considered the letter of the Council of Medical Officers of Health, created in consultation with the Office of the Chief Medical Officer of Health (“OCMOH”), strongly recommending that universities have a vaccination policy that require full vaccination against COVID-19 for all individuals involved in any in-person activities on campus, including students, staff, faculty, contractors and visitors, with the rare exception of those individuals who cannot be vaccinated due to permitted human rights and medical exemptions.

With the introduction of Ontario Regulation 577/21, the University was then legally required to operate in compliance with the advice, recommendations and instructions issued by the OCMOH. On August 30, 2021, the OCMOH issued “instructions” to the university sector.  Universities were required to establish implement and ensure compliance with a COVID-19 vaccination policy requiring their employees, staff, contractors, volunteers, and students who attend campus to provide:

  • Proof of full vaccination against COVID-19; or
  • Written proof of a medical reason for not being fully vaccinated; or
  • Proof of completing an educational session (optional).

On March 1, 2022, the OCMOH issued a memo to the university sector confirming that its “instructions” to the post-secondary sector were revoked. The OCMOH also stated that it wholeheartedly supported post-secondary institutions’ decision to continue with COVID-19 vaccination policies for the remainder of the academic term and ongoing as part of their health and safety requirements.

On March 22, 2022, the University announced that as the province of Ontario relaxes public health restrictions, the University will pause its proof of vaccination and mask requirements as of May 1, 2022.

The United Food and Commercial Workers Union (the “Union”) represents a bargaining unit of food service employees who work on the University’s campuses in Kitchener-Waterloo and Brantford, Ontario. The Union filed individual grievances on behalf of two of its members alleging that the collective agreement was breached, and the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms was violated when they were improperly denied an exemption to the Policy. However, the parties agreed that the reasonableness of the Policy was a threshold issue that needed to be decided in advance of the heading on the merits of the individual grievances. This is the issue that was before Arbitrator Wright.

a)   The Parties’ Positions

As with all other vaccination mandate cases, both parties agreed that the framework for analysis was the “KVP” test (see Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co.) with the focus on reasonableness of the policy.

The parties provided Arbitrator Wright with a long list of arbitration awards regarding mandatory vaccination policies, and following the hearing, the parties provided a copy of Arbitrator Nairn’s decision in FCA Canada. The University submitted that the FCA Canada award was distinguishable from their case because the University paused its Policy effective May 1, 2022. There was no need to decide whether the Policy remained reasonable after that date. Further, the University submitted that the FCA Canada award departed from the arbitral decisions that have so far addressed the issue of the reasonableness of mandatory vaccination policies. The Union did not take a position on the relevance of the FCA Canada decision.

b)   Decision

Arbitrator Wright concluded that the University’s Policy was a reasonable exercise of management rights in accordance with the framework established by KVP.

The University was required to have a mandatory vaccination policy by the OCMOH who issued instructions to that effect on August 30, 2021. Arbitrator Wright is clear that to the extent that the Policy implemented by the University was consistent with the instructions of the OCMOH, it is immune from challenge at arbitration.

With respect to the University’s choice to remove the option to allow non-vaccinated employees to continue to work so long as they completed an educational session and submitted to regular rapid antigen testing, Arbitrator Wright had to decide whether:

  1. It was reasonable for the University to remove the rapid antigen testing option from its Policy; and
  2. Whether the Policy was generally a reasonable one as the University chose to extend its operation two months beyond the day the OCMOH revoked its instructions.

·         Issue #1

On the first issue, Arbitrator Wright found that it was entirely reasonable for the University to exercise the discretion granted to it under the instructions from the OCMOH to remove the option of rapid antigen testing from its Policy in favour of one requiring vaccination given that:

  • Context of the university sector – students, faculty and staff use or work in lecture halls, labs, libraries, conference rooms, bars and eating facilities. Some students live on campus and some commute.
  • Campus outbreaks – the University had three COVID outbreaks declared on campus.
  • Recommendations and Instruction of Public Health Officials – the OCMOH described requiring vaccination as the single most effective public health measure to reduce the spread of COVID-19.

Arbitrator Wright also considered that the members of the bargaining unit are food service workers who must attend the workplace to work, and most of them work in close proximity to other members. Some of the members also interact with students, and remote work is not an option. Additionally, Arbitrator Wright noted that the advent of the Omicron variant has made rapid antigen testing less reliable, citing his decision in Coca-Cola Bottling Limited v. Unifor Local 973, in which he noted the reduced sensitivity of rapid antigen tests in detecting the Omicron variant compared to the Delta variant.

·         Issue #2

In considering whether the Policy as a whole was reasonable, Arbitrator Wright noted it was very similar to mandatory vaccination policies in other sectors that have been found by arbitrators to be reasonable. Arbitrator Wright concluded that the Policy was a reasonable management response to the extraordinary threat to health and safety posed by COVID-19, in all its variant forms, given the context of the University (described above) and that the Policy:

  • Was clearly communicated to staff, students and faculty;
  • Struck a reasonable balance between an employee’s interest to privacy and bodily integrity and the University’s interest in maintaining the health and safety of the workplace campus;
  • Allowed for medical and human rights exemptions;
  • Guaranteed that personal information collected in the process would be consistent with the requirements of privacy legislation;
  • Expressly contemplated that it would be renewed and updated in accordance with public health information and legislative requirements;
  • The definition of “fully vaccinated” under the Policy was designed to change with public health pronouncements;
  • Non-compliant employees were placed on unpaid leaves of absence, and even though the Policy contemplated that violations could lead to further remedial actions up to and including termination of employment, no employees of the University, including members of the Union, had their employment terminated for non-compliance with the Policy; and
  • Was one of many steps the University took to keep staff, students and faculty safe during the pandemic.

Arbitrator Wright also found that it was reasonable for the University to extend the operation of its Policy to May 1, 2022, even though the OCMOH revoked its instructions to post-secondary institutions on March 1, 2022. The University was entitled to continue to enforce its Policy to keep staff, students and faculty safe, and to meet its obligations under the collective agreement and the Occupational Health and Safety Act. Further, in his memo to the Deputy Minister of Colleges and Universities, the OCMOH wholeheartedly supported the decision of post-secondary institutions to extend their vaccination period to the end of the winter term.

·         City of Toronto v. Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888, (Rogers, August 26, 2022)

On August 26, 2022, Arbitrator Derek Rogers found that the mandatory vaccination policy of the City of Toronto which was announced on August 19, 2021 (effective September 7, 2021) and continuing into the future, was reasonable; however, the enforcement mechanism of the Policy was not.

a)   Facts

The City’s Policy requiring two doses of vaccine applied to all City employees, volunteers, and students, which included the Toronto Fire Service (“TFS”) and the fire fighters represented by the Toronto Professional Fire Fighters’ Association (the “Association”). The Policy was implemented in August 2021 and steps were taken to provide education about the benefits of vaccination.

On October 6, 2021, the City announced that employees who failed to comply with the Policy would be placed on an unpaid disciplinary suspension until they achieved compliance, failing which they would be terminated for cause on December 13, 2021 (the “Enforcement Mechanism”).  The deadline was extended to take into account a longer recommended wait time between doses.

Effective January 3, 2022, thirteen (13) Association members were terminated for cause under the Policy.

b)   Issues

The key issues in this case were whether the City’s Policy and its Enforcement Mechanism were unreasonable

c)    Decision

·         Expert Evidence

The City introduced two expert witnesses: (1) Dr. Peter Juni (then the Scientific Director of the Ontario COVID-19 Science Advisory Table); and (2) Dr. Vinita Dubey (Associate Medical Officer of Health, Communicable Disease Control for the City of Toronto).

The expert evidence of both doctors was unchallenged, and Arbitrator Rogers found that their statements expressed the case for the adoption of a vaccine mandate convincingly. Of importance was Dr. Juni’s testimony clarifying that it continues to be the case that a person receiving two doses of a recognized vaccine has significantly greater protection against the virus than those who are unvaccinated.  While booster doses improved the protection further, the scientific evidence was that the initial two doses continued to provide significant protection against serious illness.  This evidence was not before arbitrator Nairn when she decided the FCA Canada case.  Dr. Juni also testified that rapid antigen tests (“RATs”) help with detection but are likely to be insufficient due to: (1) failure to follow proper procedures; and (2) RATs provide a high incidence of false positives.  In addition, the RATs were less effective at early detection of the Omicron variants.

·         Policy was Reasonable as Adopted to Require Vaccination

Arbitrator Rogers found that the City’s Policy was reasonable for the following reasons:

  • The uncontradicted evidence of Dr. Juni and Dr. Dubey that vaccines continue to be the best preventative measure against COVID-19;
  • The workplace environment necessitated close contact with colleagues and contact with the unidentified and uncontrollable public.
  • TFS is not an operation that can be conducted remotely; and
  • The impact of the mandate on employees is rational and proportional in the balancing of interests and obligations.

Arbitrator Rogers concluded that the City had obligation to adopt an approach that promised the most effective protections for employees and the public they serve. Therefore, the City’s Policy was and continues to be reasonable.

·         Policy was not Reasonable as it was Enforced

Arbitrator Rogers found that the City’s Enforcement Mechanism was not reasonable.  The City argued that the policy was applied consistently, which is one of the requirements under the KVP test.  All firefighters, who did not apply for an exemption under the accommodation process, were given a disciplinary suspension for insubordination in refusing to comply with a City Policy, followed by termination if they did not decide to comply during the initial disciplinary suspension.  Arbitrator Rogers found the Enforcement Mechanism unreasonable for the following reasons:

  • The Enforcement Mechanism resulted in automatic discipline and did not allow for the consideration of individual or relevant circumstances or mitigating factors; and
  • The reasonable objective of the mandate would be met by the removal of non-compliant employees from active employment by way of an unpaid leave or other non-disciplinary exclusion;
  • Disciplinarily suspending and then terminating employment of unvaccinated fire fighters for cause did not add to protection of other employees or public; and
  • Some employees did not comply due to a “pathological fear” of the vaccine, and if an employee’s fear of vaccination is “not overcome by greater fear of possible penury or training by City, its continuing would suffice to demonstrate that the invariably uniform approach to the enforcement of the Policy was unreasonable”.

While Arbitrator Rogers did find that the Enforcement Mechanism was unreasonable, he made the following notable comments that leave open the possibility that continued non-compliance with the Policy could be just cause for discipline and termination, if the appropriate steps are taken to apply discipline on an individualized basis:

  • “There have to be consequences for an employee’s refusal to comply with a health and safety policy to be found reasonable – but the consequences must also be reasonable and, if disciplinary, must meet the just cause standard preserved by the collective agreement” (para 289).
  • A policy enforcement mechanism that said that an individual might be terminated for failure to comply could be reasonable, but predetermining in advance of any application of the policy that an individual will be terminated unless he or she persuades the employer not to be resort to termination is unreasonable. (para 310).

Arbitrator Rogers ultimately declared the Enforcement Mechanisms of disciplinary suspensions and discharge to be unreasonable but made no further order to determine the disposition of matters arising from the suspensions and discharge.  As he also found the ongoing application of the policy to be reasonable, reinstatement to active employment is unlikely to be the outcome for the 13 terminated firefighters assuming they continue to be unvaccinated.