Early in June, Arbitrator Stewart upheld Alectra Utilities Corporation’s COVID-19 vaccination policy. Days later, Arbitrator Nairn rendered FCA Canada Inc.’s vaccination policy to be of no force or effect. Are these decisions as inconsistent as they seem?

Alectra Utilities Corporation v Power Workers’ Union

On June 9, 2022 Arbitrator Susan Stewart upheld Alectra Utilities Corporation’s vaccination policy, which required all employees to provide confirmation of vaccination status.

Under the policy, proof of “full vaccination” was described as two doses of a two-dose vaccine series or one dose of a single-dose vaccine. Unvaccinated employees in positions requiring work attendance were placed on unpaid leave, but they retained their benefits. There were also eight unvaccinated employees working remotely who did not have any disruption to their employment, as they simply continued to work remotely. However, Alectra recently began transitioning remote workers back to the physical workplace, meaning they would also need to show proof of vaccination.

Arbitrator Stewart held that the policy was reasonable. She noted that, even though other employers have rescinded their mandatory policies, public health standards have relaxed, and there is a high level of vaccination in the Alectra workplace, the pandemic remains a matter of ongoing concern. As a result, Alectra’s decision to maintain the vaccine policy could not be characterized as unreasonable at this point.

Accordingly, Arbitrator Stewart held that:

• Unvaccinated employees currently on unpaid leave will need to maintain this status, at least for the time being.
• Employees working remotely may now be “subject to the prospect” of an unpaid leave in accordance with the policy. While the union argued these employees could simply continue working remotely, the arbitrator held that Alectra’s decision to gradually return employees to the workplace was understandable and “entirely accords with the practices of responsible employers across the province.” Further, “an employer’s assessment as to how work is most efficiently and effectively conducted is a critical management prerogative.”

Arbitrator Stewart also highlighted that an important aspect of Alectra’s policy – one of the “hallmarks of its reasonableness” – was that it expressly contemplated that the policy may be amended as relevant circumstances change. She also noted that Alectra appeared to welcome the prospect of reintegrating unvaccinated employees into its workforce in due course.

FCA Canada Inc. v Unifor, Locals 195, 444, 1285

The following week, on June 17, 2022, Arbitrator Marilyn Nairn released a decision declaring FCA Canada Inc.’s vaccination policy to be of no force or effect as of June 25, 2022.

FCA Canada, a subsidiary of Stellantis N.V., implemented the vaccine policy on a national basis for all Stellantis sites, including manufacturing/assembly operations, parts distribution warehouses, business centres, and offices. The policy stated that employees not fully vaccinated would be placed on an unpaid leave of absence.

Arbitrator Nairn held that the policy was reasonable when introduced, and has remained reasonable. FCA Canada followed public health advice in implementing the policy, and a testing regime was not a reasonable alternative to vaccination. The terms of the policy also appropriately addressed the handling of employees’ vaccine status information and recognized the duty to accommodate legitimate exemptions.

Nevertheless, the policy will no longer be reasonable and of no force or effect as of June 25, 2022, because the mandate was defined only as requiring two doses (of a two-dose vaccine). The arbitrator pointed to recent evidence that such a mandate had “waning efficacy” and that there is only a “negligible difference” between having two doses of the vaccine and being unvaccinated.

The arbitrator also noted that FCA Canada’s policy did not include a periodic review, and that it would be prudent to do so in order to respond to changing circumstances.

Key Take-Away for Employers

Both of these new arbitral awards underscore the value of an employer regularly reviewing their vaccination mandates. In light of the rapidly evolving circumstances around the pandemic and corresponding public health guidance, employers should periodically revisit their policies to ensure they remain reasonable and defensible.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.