Although many organizations drafted and implemented COVID-19 vaccination policies less than a year ago, change is swift in the pandemic world and year-old policies may be past their “best before” date, given recent arbitral case law. Employers should therefore take a hard look at their policies to ensure they are still relevant, enforceable, and accurately reflect the organization’s current goals and practices. This will be particularly important if the application of the policy becomes an issue before a Court or arbitrator.
If that occurs, the “reasonableness” of the policy will be closely scrutinized, as failure to comply with a reasonable policy may constitute cause for termination. To be considered reasonable, policies must also be clearly communicated to employees and consistently enforced.
For example:
- Does your policy define “fully vaccinated” as two doses? If so, one arbitrator has found it to be unreasonable, and therefore unenforceable at this point.[1] In June 2022, Arbitrator Nairn, after carefully reviewing current scientific evidence, found:[2]
I hereby find that a COVID-19 vaccine mandate defined as requiring two doses (of a two-dose vaccine) is no longer reasonable based on 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. Rather, the evidence supports a conclusion that there is negligible difference in the risk of transmission in respect of Omicron as between a two-dose vaccine regimen and remaining unvaccinated. There is, under the definition in the Policy, no longer a basis for removing unvaccinated employees from the workplace. - Does your policy define “fully vaccinated” as two doses plus any recommended boosters? If so, have you consistently enforced that requirement? Many organizations were diligent about documenting the first two doses but have not followed up to ensure that all eligible employees have had their third (and fourth, in some cases) doses.
- Were unvaccinated employees placed on unpaid leave? How long do you intend to allow that to continue? If you intend to continue to permanently require vaccination as a term and condition of attendance in the workplace, consider whether termination of employment is appropriate. If so, make sure to amend your policy, if necessary, to provide for termination and give employees on leave notice of the revised policy and your intention to terminate before implementing the decision. Do not assume that this termination will be “for cause” – we have no case law from the Courts so far and labour arbitrators have been deciding the matter one way or the other based on the specific facts in each workplace.[3]
These are only some of the many aspects to consider when reviewing your COVID-19 vaccination policy, so we suggest that as you implement the new policies required by the Employment Standards Act, 2000 (disconnecting from work and electronic monitoring), you also review and, if necessary, update your vaccination policy.
As always, if Siskinds’ Labour & Employment Group can assist, just let us know.
[1] 2022 CanLII 52913 (ON LA) | FCA Canada Inc. v Unifor, Locals 195, 444, 1285 | CanLII
[2] Ibid. at p. 107.
[3] For example, see 2022 CanLII 28657 (ON LA) | Revera Inc. (Brierwood Gardens et al.) v Christian Labour Association of Canada Award | CanLII (Arbitrator White – policy and termination for cause upheld). But see 2022 CanLII 343 (ON LA) | Electrical Safety Authority v Power Workers’ Union | CanLII (Arbitrator Stout – termination for cause for failure to vaccinate not reasonable).