Vaccine Mandate Update – September 2022
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Since our last update, two new arbitration decisions and one court decision from British Columbia have been released. The arbitration cases address discipline for non-compliance and the reasonableness of adding a requirement for a mandatory booster shot. Arbitrators continue to uphold mandatory policies as reasonable based on the expert evidence and to endorse an individualized disciplinary approach to non-compliance. The Supreme Court of British Columbia found that an employee placed on unpaid leave for non-compliance with a vaccination policy was not constructively dismissed.
On September 12, 2022, Arbitrator Robert Herman revisited Coca-Cola Bottling’s policy. The policy had already been found to be reasonable in two prior cases from Arbitrators Mark Wright and Randall Noonan, in Unifor Local 973 v Coca-Cola Canada Bottling Limited and Coca Cola Canada Bottling Inc. v Teamsters, Local 213). Arbitrator Herman did not depart from the prior rulings.
Key takeaways from Arbitrator Herman’s decision are as follows:
a) Expert Evidence
An expert witness, Dr. Mark Loeb, provided medical evidence confirming that vaccines were and are the most effective means of protection for employees and the public, including the Omicron variant, and this is so even if only two doses are required. Vaccines are also the most effective means for limiting transmission of the virus. Dr. Loeb’s evidence indicated that in FCA Canada Inc. v. unifor, Local 195, 444, 1285, Arbitrator Marilyn Nairn incorrectly concluded that there was evidence supporting the waning efficacy of vaccines and that scientific evidence failed to establish any notable difference in the degree of risk of transmission of the virus as between the vaccinated and unvaccinated. Dr. Loeb’s testimony was consistent with that of Dr. Juni, who provide expert evidence in the City of Toronto v. Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888, summarized in our prior publication.
b) The Imposition of Discipline or Termination
Although no employees had been disciplined under the policy, the Union argued that the policy was unreasonable because discipline might be imposed. Arbitrator Herman did not find this to be unreasonable. The key paragraphs in his award are as follows:
42. I do not agree that an otherwise reasonable vaccine policy cannot in principle be enforced through the imposition of discipline, including termination, in individual cases and circumstances, which is what this Policy effectively states. Beginning with the foundational decision in KVP, there have been numerous arbitration decisions upholding the imposition of discipline or termination for non-compliance with a unilaterally imposed company rule or policy.
43. Discipline and/or termination for non-compliance with the Policy might be justified in specific circumstances; for example, refusal to comply with the Policy for an extended period of time, or a material negative impact upon the ability of an employer to effectively operate its business if employees continue to remain on indefinite leave. Under the Policy, whether or not such circumstances, or others, might justify a disciplinary response is a matter to be assessed by an arbitrator when or if discipline is imposed and challenged by the Union. Any discipline that might subsequently be imposed could then be grieved by the impacted employee, the just cause standard would apply, and relevant circumstances would include those in play at the time of the discipline or termination. The Policy itself is therefore reasonable when it states that discipline for cause might result for non-compliance with the Policy.
On August 30, 2022, Arbitrator Stephen Raymond found that the mandatory three-dose vaccination policy of the Regional Municipality of York, which operates two long-term care homes, was reasonable.
a) Reasonableness of the Three-dose Policy
Here, the Union argued that the distinction between the Employer’s two-dose policy and its three-dose policy was that the two-dose policy was required by a Directive of the Ontario Government, which was later amended to require a three-dose policy. The Directive was revoked on March 14, 2022, yet the employer proceeded with its three-dose policy. Arbitrator Raymond stated that it is not inherently unreasonable to have a policy without the mandate of the Directive, and he concluded that the three-dose policy was reasonable given that:
- Ontario’s Science Table reported, as of March 17, 2022, that: (1) the numbers of COVID-19 cases were expected to begin increasing again; (2) older adults, among others, were still susceptible to severe illness from COVID-19; and (3) a third dose will protect health care workers from getting COVID-19 and from transmitting COVID-19 to vulnerable seniors;
- The employer has a duty arising out of both the collective agreement and the Occupational Health and Safety Act to protect the health and safety of its workers; and
- The Employer has a statutory obligation under the Fixing Long-Term Care Act to provide a safe home for the residents as an operator of a long-term care home.
b) BOLO: Incoming Decision on Termination Provisions
This decision is the second in a trio of decisions about the Employer’s Policy. Arbitrator Raymond indicated that the third decision will relate to the reasonableness of the termination provisions in the policy.
On September 26, 2022, the British Columbia Supreme Court found that the mandatory vaccination policy of the employer, Tribe Management Inc., was reasonable and placing an employee on an unpaid leave for failing to comply with the Policy did not constitute constructive dismissal.
Deepak Parmar is an accounting professional and occupied a senior management position as Controller, Client Accounting with the employer. The employer provides condominium management services, which includes community/amenity management and building maintenance, as well as rental management services to full rental buildings and individual units.
Ms. Parmar alleged that she was constructively dismissed from her employment when she was placed on an unpaid leave of absence after refusing to comply with the employer’s Policy. Ms. Parmar was on leave for a period of three months. The employer asserted that its Policy was a reasonable and lawful response to the uncertainty of the COVID-19 pandemic and was implicitly authorized by the terms of the employment contract.
The Court noted that Ms. Parmar’s employment contract provided that she would comply with all of the employer’s policies, as amended from time to time at the employer’s discretion. This provision allowed the employer to implement and amend its Policy and obliged the employee to comply with it. The employer’s right to implement its Policy was only subject to the implied qualification that the policy be reasonable and lawful, which the employee argued it was not.
i. Constructive Dismissal
Justice MacNaughton cited Devlin v. NEMI Northern Energy & Mining Inc., which sets out factors for determining whether a unilateral suspension or “unpaid leave of absence” constitutes a fundamental or substantial change to an employment contract. The Court focused on the final Devlin factor: whether the employer had a bona fide business reason, including safety reasons, for implementing its Policy and placing Ms. Parmar on an unpaid leave of absence for failing to comply with it.
The issue, then, was not whether the employer had a perfect policy, but whether it was a reasonable approach when implemented, given the uncertainties then presented by the pandemic.
ii. Reasonableness of the Policy
Justice MacNaughton found that the Policy was a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic as it:
- Was based on the information that was available to the employer at the time;
- Allowed for both medical and religious exemptions;
- Struck an appropriate balance between the employer’s business interest, the rights of its employees to a safe work environment, its client’s interests and the interest of the residents in the properties it serviced; and
- Satisfied the employer’s responsibilities as a corporate citizen.
At the same time, the Policy ensured employees, like Ms. Parmar, could maintain a principled stance against vaccination without losing their employment, by being put on a leave of absence. The Policy respected Ms. Parmar’s right to choose to remain unvaccinated by putting her on a leave of absence, and she was aware that such an absence would be the consequence of her decision to remain unvaccinated.
In arriving at her decision, Justice MacNaughton considered the KVP test at the centre of arbitration awards on mandatory vaccination policies and noted that the test has been repeatedly endorsed by the courts, as it identifies certain factors to be considered in assessing a workplace policy. Justice MacNaughton also reviewed arbitral cases regarding mandatory vaccination policies.
Based on the Policy, Ms. Parmar could return to her employment upon becoming vaccinated. Her refusal to comply with the Policy was a repudiation of her contract of employment, which the employer did not accept. Further, the employer did not fill her position and was prepared to extend her leave of absence until the Policy changed as more information became available or if Ms. Parmar’s vaccination status changed. It was Ms. Parmar’s decision to remain unvaccinated, and she opted to resign. This was a voluntary decision. Ms. Parmar was not constructively dismissed from her position.
The article in this update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hunter Liberatore Law LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hunter Liberatore Law LLP. ©