In a previous blog, I explained how Parmar v Tribe Management Inc. (2022 BCSC 1675) is a major win for non-unionized employers. It held that employers could impose reasonable mandatory COVID-19 vaccination policies. The court looked at a policy similar to what many employers imposed in 2021, where employees would be put on unpaid leave if they do not get two doses of the COVID-19 vaccine. However, what was deemed reasonable in 2021 may not be reasonable in 2022. Lawyers are starting to recommend that mandatory COVID-19 vaccination policies change so they remain reasonable.

Labour law arbitrators’ decisions are already addressing the need to update mandatory COVID-19 vaccination policies, which might get reflected in the employment law context. In FCA Canada Inc. v Unifor, Locals 195, 444, 1285 (2022 CanLII 52913) the arbitrator found 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.” (para. 107) The arbitrator then went on to make the employer’s mandatory COVID-19 vaccination policy no longer effective. That decision is controversial. The arbitrator in Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 v Toronto (City) (2022 CanLII 78809) called that finding wrong based on the evidence he was provided. That arbitrator found a similar policy to be reasonable except in the way that it was enforced.

Despite the decision in FCA Canada Inc and the fact that restrictions have been mostly removed by the different levels of government, it is likely premature to get rid of COVID-19 vaccine policies at the workplace. Hospitals across the country are still seeing outbreaks of COVID-19. There are concerns from scientists that the mutating omicron strains of COVID-19 might cause a fall or winter wave. Ontario’s top doctor has even warned of the possibility of reimposing the mask mandate due to outbreaks which might lead to another wave.

Employers could add COVID-19 vaccine boosters to their mandatory COVID-19 vaccination policies. It would be an appropriate addition, as Ontario recommends getting a fourth dose of the vaccine. Courts have taken a positive view of boosters, seeing them as an effective tool against COVID-19. However, to add booster provisions to a mandatory COVID-19 vaccination policy, employers would need to ensure that employees have an adequate chance to get the booster, especially if they are in the waiting period between doses. As such, employers need to give their employees an advanced warning about requiring boosters. Employers would also need to ensure that the booster can be easily received by their employees. Currently, the new bivalent boosters are in high demand. Therefore, if an employer wants their employees to get the bivalent booster, to reduce the risk of COVID-19 transmission in the workplace, they should permit extensions and possible time off during the workday to get the booster.

As employers evolve their mandatory COVID-19 vaccination policies, they must ensure that they keep human rights in mind. Typically, this has been done by making exemptions for those who have either a medical reason or a religious reason for not getting vaccinated and boosted. Removing these exemptions could lead to costly litigation.

How Suzanne Desrosiers Professional Corporation can help

Suzanne Desrosiers Professional Corporation can help employers update their mandatory COVID-19 vaccination policies. We can update policies so that they follow the updated recommendations about the COVID-19 vaccine. Our advice can help ensure that the employer makes a policy that is permitted under the law. To update your mandatory COVID-19 vaccination policy, you can reach us by calling us at 705-268-6492 or emailing us at info@sdlawtimmins.com.