In two recent awards, Ontario arbitrators held it was reasonable for employers to insist on employees getting at least two doses of a COVID-19 vaccine, even in the context of the Omicron variant. These awards provide new guidance to employers who are contemplating disciplinary measures in relation to employees who refuse to get vaccinated. This article reviews the two decisions and shares insights on what they mean for employers.

Policies and Messaging Should Be Clear and Unequivocal

Under the mandatory vaccine policy of the Coca-Cola Canada Bottling Limited (“the company”), all employees were required to get two doses of an approved COVID-19 vaccine and show proof of vaccination within specified timeframes, unless granted an accommodation by the company. The policy stated that violations “may lead to discipline, such as suspension without pay, up to and including termination for cause”, subject to human rights legislation and collective agreements.

The United Food and Commercial Workers’ Union Local 175 (“the union”) challenged this part of the policy on the grounds that it was not “clear and unequivocal” about the consequences that unvaccinated workers would face. In his decision, Arbitrator Herman rejected this challenge. He stated the company appropriately warned employees that discipline may result. In doing so, he reaffirmed the decision in, Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175, in which the arbitrator held that “it is reasonable, if not required, for an employer to put employees on notice of potential consequences of non-compliance with a rule or policy”.

This result reaffirms the validity and importance of provisions in vaccination policies that put employees on notice for possible consequences of non-compliance with requirements, including discipline and termination. At a minimum, employers should advise employees in advance of the following:

• The requirements of the policy (e.g. getting vaccinated, disclosing status, etc.)
• Reasonable timelines for complying with requirements
• That human rights exemptions are available
• Potential consequences of not complying with requirements

The decision recognises that these requirements and timelines might change based on emerging science, public health guidance or other factors, and that employers are entitled to review and revise policies accordingly, so long as they provide reasonable notice.

Discipline Can Be Justified for Non-Compliance

In the Coca-Cola arbitration, the union also challenged the policy on the ground that a possible discipline was unreasonable.  The union asserted that policy objectives could be fulfilled by placing employees on unpaid leaves of absence, and that discipline for non-compliance could never by justified. The arbitrator rejected this argument and held that, in certain circumstances, it was possible for violations to lead to discipline.

Where an employee is disciplined or discharged for non-compliance with a mandatory vaccination policy, these decisions open the door for an arbitrator to consider whether there was just cause based on a consideration of all the circumstances at that time, including but not limited to prior disciplinary record and length of service

The mandatory vaccination policy of the City of Toronto (“the city”) also required all employees, including fire fighters, to receive two doses of an approved COVID-19 vaccine and provide proof of vaccination, subject to human rights exemptions. However, in contrast to the Coca-Cola policy, the City policy stated that employees that did not comply with this requirement “will be” suspended until they achieved compliance, failing which they “will be” terminated. The language of the policy suggested that these outcomes were mandatory, not discretionary.

The Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 (“the association”) challenged the policy on grounds of being unreasonable, unlawful, and violating the collective agreement. In his decision, Arbitrator Rogers upheld the challenge, finding that automatic termination was unreasonable. He rejected the city’s argument that automatic discharge or discipline was justified on grounds of health and safety, or as a threat to promote vaccination.

A Two-Dose Vaccination Requirement Remains Reasonable

In both awards, the arbitrators concluded, based on the unchallenged scientific evidence before them, that a two-dose vaccine mandate remains reasonable, despite the emergence of the Omicron variant. In doing so, the arbitrators parted ways from a previous decision in FCA Canada Inc. and Unifor, Locals 195,444,1285, which held that a vaccine mandate defined as two doses was no longer reasonable, since there was a negligible difference in the risk of transmission of the Omicron variant between a two-dose regimen and remaining unvaccinated.

Arbitrator Herman observed that arbitrator Nairn did not have the benefit of the testimony or direct evidence of a scientific expert. In contrast, he heard convincing scientific evidence from a recognized expert, Dr. Mark Loeb, that a two-dose policy remained prudent and advisable. Similarly, arbitrator Rogers relied on the unchallenged evidence of two expert witnesses, Dr. Peter Juni and Dr. Vinita Dubey, to find that a person receiving two doses of a recognized vaccine enjoys significantly greater protection against the virus than those who are unvaccinated.

Key Takeaway for Employers

A vaccination policy is likely to be considered unreasonable if it contains automatic discipline or discharge for employees that refuse to get vaccinated. While deciding whether discipline or discharge is justified for employees who refuse to comply with a mandatory vaccination policy, employers must consider all relevant factors on a case-by-case basis.

If you have any questions about mandatory COVID-19 vaccination policies, other COVID-19-related issues or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer .

The author gratefully acknowledges the contribution of Liam Billings, an Articling Student in the firm’s Toronto office.