As mandatory vaccination policies continue to face legal challenges and union arbitration across Canada, a recent compilation of decisions shows it’s not looking good for workers forced off the job over Covid shots.

An article published by the labour law firm Mathews Dinsdale titled “Recent COVID-19 Vaccination Policy Decisions” looked at a number of rulings through March and April – none of which came out on the side of the employees. Many also saw arbitrators ruling against rapid testing as an alternative to vaccination, questioning the tests’ effectiveness against detecting Covid rather than the vaccines’ ability to prevent its spread.

“For now, it is clear the loosening of restrictions has not swayed arbitrators’ thinking that COVID-19 is still a large enough threat to the workplace to warrant mandatory vaccination policies,” the report reads.

The decisions came from arbitration hearings in Ontario and British Columbia, and involved private companies, public authorities and both national and provincial unions.

In a Mar. 17 ruling against Unifor, local 973, an arbitrator in Ontario upheld a vaccine mandate announced by Coca-Cola at its Brampton bottling plant in October, emphasizing the indoor location and close-quarters nature of the job and ruling it reasonable that noncompliant employees be placed on unpaid leave.

While rapid testing was allowed during January for employees without two shots, the option ended on Feb. 1. The arbitrator noted that the combined testing/vaccination regime had not prevented large-scale Covid infections, but attributed the failure of safety precautions to the reliability of testing rather than the vaccines themselves.

Another Ontario decision on Mar. 22 saw an arbitrator side with the Toronto District School Board (TDSB) against employees represented by CUPE, Local 4400. The vaccination policy – which required all employees with direct contact with students and staff at TDSB buildings to have two shots by Nov. 1 – was rescinded only three days before the ruling.

As with the previous decision, the arbitrator ruled that rapid testing did not provide the same level of protection as vaccines against Omicron strain of COVID and that vaccination was “a reasonable rule and appropriate condition of employment.”

In B.C. on Mar. 21, the International Brotherhood of Electrical Workers, Local 258 failed to defend employees forced off of work due to a vaccine mandate imposed by BC Hydro in November.

With the exception of a portion of the policy involving employee discipline, an arbitrator ruled that the vaccination policy was reasonable, especially considering some of the travel and close-quarter work involved. While recognizing Covid shots as a “significant intrusion on the interests of employees,” the arbitrator also ruled out rapid testing over their decreasing effectiveness during Omicron.

On Apr. 4., Extendicare Lynde Creek Retirement Residence in Ontario won in arbitration against employees represented by United Food & Commercial Workers, Local 175. The ruling found that the vaccination policy – including the need for any boosters recommended by Health Canada – was consistent with the collective agreement, relevant health legislation and other authorities.

The arbitrator found the policy still reasonable despite the province reducing or eliminating measures including vaccination in long-term care and other health settings. He also found it reasonable whether or not the employer decided to conduct testing in the future.

Maple Leaf Foods, which brought in a vaccination policy for all on-site employees and contractors at the end of March, was found to have done so in a way “reasonable and enforceable” by an arbitrator on April 10. As with the Coca-Cola and BC Hydro decisions, the arbitrator noted the close quarters of the work.

He also ruled that previous safety measures – including rapid testing – would not have compensated for the absence of the vaccination requirement, and that the policy remained reasonable even with the province’s declining emphasis on Covid restrictions.

Another decision in B.C. included an arbitrator on Apr. 4. upholding Fraser Health Authority’s firing of a healthcare worker represented by the BC General Employees’ Union. Although the worker was recognized to have an “unblemished disciplinary record,” the decision recognized that the health order including the vaccine mandate had no end-date, and that the grievor had said she did not intend to become vaccinated in the future.

The arbitrator ruled that termination was the only reasonable solution, saying there was “no path forward.”

The survey of decisions concludes by recognizing that “circumstances surrounding the pandemic are constantly changing, and therefore the reasonableness of measures can also change,” but also that arbitrators seem to be ruling out testing over vaccination.

Legal action nonetheless continues against the federal and provincial governments over the lawfulness of various Covid restrictions. In B.C., a lawyer is also representing over 200 union members against the unions they say failed to defend them against the vaccine mandates that forced them off the job.

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