BorEHal June 2022 Edition: Government of Canada Reverses its Stance on Mandatory Vaccination

The Government of Canada announced that as of June 20, 2022, the Policy on COVID-19 Vaccination for the Core Public Administration is suspended, and that the Government will not be moving forward with proposed regulations to mandate vaccination in all federally regulated workplaces.

The Government has indicated that it will continue to evaluate the measures in place and respond based on the latest public health advice and science. It has also indicated that the mandate could be reinstated in the future, should it become necessary to do so.

This means that federal employers will be responsible for establishing return-to-work practices for those employees who were unable to work because of the mandatory vaccination requirements. Employers will also be responsible to review their current COVID-19 vaccination policies in light of this new development. Find Out More

WHAT’S NEW IN LABOUR AND EMPLOYMENT LAW

Human Rights and Accommodation

In Public Health Sudbury & Districts v Ontario Nurses’ Association, Arbitrator Robert Herman held that an employee was entitled to be exempted from her employer’s mandatory COVID-19 vaccination policy on the basis of her creed as a Roman Catholic.

The grievor, a nurse, objected to the vaccine because fetal cell lines were used in their research; therefore, to receive one of the vaccines would be to condone, cooperate with, or participate in abortion which was contrary to her beliefs as a Roman Catholic. 

The arbitrator found the connection between COVID-19 vaccines and fetal cell lines to be quite remote, but ultimately concluded that so long as the grievor sincerely believed that her creed did not allow her to get vaccinated for that reason, there was a sufficient basis for granting her exemption request.

While this decision was favourable to the employee, it is important to note that requests for exemptions under the Ontario Human Rights Code must be examined by the employer on a case-by-case basis and therefore, each matter may be subject to a different outcome.

Employment Contract and Policies

In Rahman v Cannon Design Architecture, the Ontario Court of Appeal has overturned a Superior Court of Justice’s decision dismissing the wrongful dismissal action brought against an employer by a former employee because she had the benefit of a lawyer to negotiate her employment contract.

The Court of Appeal concluded that contextual factors beyond the plain wording of the termination provisions of an employment contract should not be considered to decide whether is contravenes the Employment Standards Act, 2000. The Court of Appeal was of the view that subjective considerations such as an employee’s receipt of independent legal advice, the sophistication of the parties, equal bargaining power, and the parties’ mutual intent to apply the minimum standards of the ESA, should not “distort” and override the wording of an otherwise illegal termination provision.

This decision is a reminder for employers of the importance of having clear, enforceable, and ESA compliant termination provisions in an employment agreement, no matter the level of sophistication of their employees. To that end, employers should periodically review their employment contract templates.

Recently in FCA Canada Inc v Unifor, Locals 195, 444, 1285, Arbitrator Nairn found that an employer’s mandatory vaccination policy that was reasonable at the time it was implemented on October 14, 2021, would become unreasonable as of June 25, 2022.

The policy in question required two doses of the vaccine and did not mandate booster shots. Arbitrator Nairn conducted an extensive review of the existing scientific literature and grounded her findings in:

  • the decreasing efficacy of a double dose of the vaccine against the Omicron variant; and
  • the failure to establish a notable difference in the degree of risk of transmission between the vaccinated and unvaccinated at only two doses of the vaccine.

For more information on your rights and obligations as an employer with respect to COVID-19 vaccination policies, please contact one of our experienced lawyers.

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