Arbitrators Split in Two Recent Decisions on Whether Two-Dose COVID-19 Vaccine Mandates Continue to be Reasonable as Pandemic Evolves

July 6, 2022

As public health responses adapt to an ongoing and evolving COVID-19 pandemic, now dominated by the Omicron variant, arbitrators continue to consider whether mandatory workplace vaccination policies remain reasonable. In two recent decisions, Alectra Utilities Corporation v Power Workers’ Union and FCA Canada Inc. v Unifor, Locals 195, 444, 1285, labour arbitrators recognized the importance of vaccination but came to different conclusions on whether the employer’s mandatory vaccination policies (“the Policies”) should be upheld.

In Alectra, consistent with the vast majority of previous arbitral decisions regarding mandatory vaccination policies, Arbitrator Susan L. Stewart upheld Alectra’s mandatory vaccination policy (“Alectra’s Policy”) as a reasonable exercise of management rights, finding that vaccination continues to provide meaningful protection to Alectra employees.[1]

Conversely, in FCA Canada, Arbitrator Marilyn A. Nairn found that the policy was reasonable when it was introduced but nevertheless reluctantly struck down FCA Canada’s mandatory vaccination policy (“FCA Canada’s Policy”) on the basis that a COVID-19 vaccine mandate, defined as only requiring two-doses, was no longer reasonable. In doing so, she found that there was evidence of waning efficacy of a two-dose vaccination status and that there was a failure to establish a “notable difference in the degree of risk of transmission of the virus” between the vaccinated (as defined in the Policy) and the unvaccinated.[2] Arbitrator Nairn provided the Employer with “a short (one week) window to consider and address whatever flows from this decision before the Policy is vacated”.[3]

The Policies 

In Alectra, the employer (Alectra) is a large public utilities and local distribution company that provides electricity to a number of Ontario cities. While some of the trades work is performed outside, employees regularly spend time at service centres or garages, and many are often required to work in close physical proximity. As of the hearing, about 97% of the bargaining unit reported being vaccinated.[4]

In FCA Canada, the employer (FCA Canada) is a Canadian subsidiary of an automotive manufacturing corporation. While at their work station, employees work within six feet of one another. They also regularly move within the workplace in large groups.[5] As of the hearing, about 95% of the bargaining units reported being vaccinated.[6]

In both cases, the Policies share important similarities:

1. All employees must provide proof of vaccination status. Alectra’s Policy requires two doses of a two-dose vaccine or one dose of a single dose vaccine. FCA Canada’s Policy requires two doses of a two-dose vaccine.
2. Both Policies allow for the accommodation of unvaccinated workers based on medical and religious exemptions.
3. Under both Policies, unvaccinated employees in positions that require attendance at work were placed on unpaid leave.

The key factor is reasonableness 

The COVID-19 pandemic is in its third year and there is now a considerable number of arbitration decisions dealing with workplace vaccine mandates. Consistent with past decisions, in both Alectra and FCA Canada the union and the employer agreed that the KVP principles should be applied to determine the reasonableness of a mandatory vaccination policy.[7] Under KVP, the following factors should be considered in assessing the reasonableness of a policy:

1. [The rule] must not be inconsistent with the collective agreement;
2. It must not be unreasonable;
3. It must be clear and unequivocal;
4. It must be brought to the attention of the employee affected before the company can act on it;
5. The employee concerned must have been notified that a breach of the rule could result in his discharge (if the rule is to be used as a basis for discharge); and
6. It should have been consistently enforced by the company from the time it was introduced.[8]

The parties in Alectra and FCA Canada agreed that the dispute centred on the second factor – the reasonableness of the Policies.[9] The parties also agreed that the reasonableness analysis should balance the relevant interests – namely, the unvaccinated employee’s interest in personal autonomy, bodily integrity and remaining in active employment with the safety and health of all employees in the workplace.[10]

The analyses in Alectra and FCA Canada  

In their respective decisions, Arbitrator Stewart and Arbitrator Nairn dealt at length with evidence from each union and employer regarding the risk posed by COVID-19, the waning effectiveness of vaccination, and the highly transmissible Omicron variant.[11]

In Alectra, Arbitrator Stewart recognized that under Alectra’s Policy, unvaccinated employees would be “deprived of an opportunity to work in the context of a personal decision about a medical procedure”.[12] Such an interest, however, must be balanced against the risk to the health of others, which is “an extraordinarily significant matter, perhaps the most significant personal interest that exists”.[13] The Arbitrator found that even though two-dose vaccination has been found to lose effectiveness overtime,  “that… does not alter the fact that those who are unvaccinated create a risk for those who are vaccinated where there is congregation.”[14] Arbitrator Stewart also rejected the union’s argument that rescinded vaccine mandates at other workplaces and relaxed public health standards negate the reasonableness of Alectra’s Policy.[15] Given the prevalence of the highly infectious Omicron variant, Arbitrator Stewart found that the Omicron variant increases, rather than decreases, the importance of vaccination as the primary method of protection from COVID-19 transmission at the workplace.[16] Though “circumstances are certainly evolving”,[17] she nonetheless found Alectra’s Policy to be reasonable and dismissed the union’s grievance.[18]

In FCA Canada, Arbitrator Nairn began her analysis by observing that the pandemic “was and is not over”; that the positivity rate in the workplaces had increased; and that vaccination continues to be key in reducing serious outcomes from infection.[19] Like Arbitrator Stewart, Arbitrator Nairn rejected the union’s argument that changing policies at other workplaces and at the government level mean that FCA Canada’s Policy must also be lifted.[20] However, unlike in the Alectra decision, Arbitrator Nairn accepted the union’s argument that full vaccination, defined as two doses, had become ineffective in curbing transmission post-Omicron.[21] While Arbitrator Nairn found that the Alectra Policy was reasonable when it was introduced, and for some time period thereafter, she concluded that with the Omicron variant there was a negligible difference in the risk of transmission between those vaccinated with two-doses and the unvaccinated employees.[22] Arbitrator Nairn concluded, “not without considerable personal reservation”, that there was no longer a basis for FCA Canada’s Policy and struck down the policy.[23] As previously stated, she gave the Employer a short window to address whatever flows from the decision before the Policy is vacated. Notably, Arbitrator Nairn also emphasized that the decision “should in no way be taken as support for remaining unvaccinated against COVID-19, absent a legitimate exemption”.[24]

Takeaway: contours of reasonableness may change as the pandemic evolves

The Alectra and FCA Canada decisions are notable as they were issued as many public health measures and government mandates regarding COVID-19 are being lifted, with the removal of such general precautions affecting the reasonableness of workplace mandatory vaccination policies. While the decisions ultimately reached opposite conclusions regarding the reasonableness of similar mandatory vaccination policies, there is also some commonality between the decisions regarding the need to re-visit mandatory vaccination policies as circumstances change.

In Alectra, Arbitrator Stewart emphasized that “the circumstances are certainly evolving”.[25] She specifically noted that one of the hallmarks of the reasonableness of Alectra’s Policy is that “it specifically contemplates amendment, as relevant circumstances change” and the prospect of the unvaccinated employees’ reintegration into its workforce in “due course”.[26]

Similarly, Arbitrator Nairn remarked that employers should aim to appropriately asses the ongoing reasonableness of a vaccine mandate even if their ability to do so would “inevitably lag behind the virus’ evolution”.[27]

In both decisions, the arbitrators found that COVID-19 testing regimes are not as effective as policies involving mandatory vaccination and cannot be considered “equivalent to vaccinations”[28] or “a reasonable alternative to vaccination”[29]. This finding is consistent with recent arbitration decisions on workplace vaccine mandates.

While the Alectra decision is consistent with the vast majority of past arbitral decisions in finding that a mandatory vaccination policy that only required two doses of the vaccine was reasonable, the FCA Canada decision is currently an outlier. It remains to be seen if other arbitrators will follow the reasoning and outcome in FCA Canada as the pandemic continues to evolve. Further, while not explicitly stated in FCA Canada, the decision seems to leave the door open to a mandatory vaccination policy that requires three-doses as opposed to only two. Again, it remains to be seen if employers will start amending the definition of “fully vaccinated” under mandatory vaccination policies to require three doses.

[1] Alectra Utilities Corporation v Power Workers’ Union, 2022 CanLII 50548 (ON LA) at para 21 [Alectra].

[2] FCA Canada Inc. v Unifor, Locals 195, 444, 1285, 2022, CanLII 52913 (ON LA) at para 107 [FCA Canada].

[3] Ibid. at para 110.

[4] Alectra, supra note 1 at paras 7-8.

[5] FCA Canada, supra note 2 at paras 4-11.

[6] Ibid. at para 46.

[7] Alectra, supra note 1 at para 14; FCA Canada, supra note 2 at para 3.

[8] Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd., 1965 CanLII 1009 (ON LA) at p 85-86.

[9] Alectra, supra note 1 at paras 15; FCA Canada, supra note 2 at para 3.

[10] See Alectra, supra note 1 at paras 21; FCA Canada, supra note 2 at paras 79, 95.

[11] See generally Alectra, supra note 1 at paras 16-17; FCA Canada, supra note 2 at paras 48-62.

[12] Alectra, supra note 1 at para 21.

[13] Ibid.

[14] Ibid.

[15] Alectra, supra note 1 at para 21.

[16] Ibid. at para 22.

[17] Ibid. at para 23.

[18] Ibid. at para 24.

[19] FCA Canada, supra note 2 at para 93.

[20] Ibid. at para 96-97.

[21] Ibid. at paras 98-103.

[22] Ibid. at para 107.

[23] Ibid. at paras 107, 110.

[24] Ibid. at para 109.

[25] Alectra, supra note 1 at para 23.

[26] Ibid.

[27] FCA Canada, supra note 2 at para 106.

[28] Alectra, supra note 1. at para 9.

[29] FCA Canada, supra note 2 at para 89.

Authored by Yiwei Jin

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