Dionne Pohler and Rafael Gomez: Why vaccine mandates are in legal trouble

Waning immunity and infections among the vaccinated will be noted by labour arbitrators.

By: Dionne Pohler and Rafael Gomez

In 2018, labour arbitrator William Kaplan adjudicated a dispute between St. Michael’s Hospital/Ontario Hospitals Association (OHA) and the Ontario Nurses Association (ONA) over the employer’s “vaccinate or mask” (“VOM”) policy. The VOM policy required that nurses either receive the influenza vaccination or wear a mask during the entire flu season, which could last up to six months. 

Sound at all familiar?

It should: the legal framework around previous vaccination policies like this one suggest that it will become increasingly difficult for employers to continue to justify more stringent “jab or job” mandates for COVID-19 vaccines. This is especially true when there are less invasive alternatives like testing available, and as evidence on waning COVID-19 vaccine efficacy and the coercive nature of these mandates becomes more widely understood by arbitrators, the courts, and the broader public.

When assessing employer policies in unionized workplaces, labour arbitrators like Kaplan use the “KVP test” — a set of conditions which places limits on management’s right to unilaterally set workplace policies. 

One of those conditions is that the policy must be reasonable. As noted by Kaplan:

“The [policy is] subject to a reasonableness test. ... In reaching a conclusion, among the factors to be considered is the nature of the interests at stake, whether there are less intrusive means available to achieve the objective, and the impact of the particular policy on employees.”

Kaplan ultimately ruled that the St. Michael’s Hospital VOM policy was unreasonable. Kaplan’s finding was consistent with a previous one issued by Arbitrator James Hayes in a similar labour arbitration case a few years earlier over an identical vaccination policy (Sault Area Hospital/OHA v. ONA, 2015).

While the two arbitrators came to the same conclusion about the unreasonableness of the hospitals’ positions, they provided different rationales. 

Kaplan’s reasoning was that the policy was illogical. Hayes’ rationale, on the other hand, was that the policy was primarily a “coercive tool” introduced by the employer “for the purpose of driving up immunization rates.”

Kaplan and Hayes recognized the employer’s obligation to ensure the health and safety of both workers and patients in a health-care context. However, both arbitrators also considered extensive expert testimonies and contested scientific evidence on the efficacy of masks and flu vaccines at eliminating the spread of infection in hospitals. While providing the strong caveat in his decision that complex scientific debates and best practices in public health should not be settled in a labour arbitration forum, Kaplan added, “One day, an influenza vaccine like MMR may be developed, one that is close to 100% effective … if a better vaccine and more robust literature about influenza-specific patient outcomes were available, the entire matter might be appropriately revisited.”

Fast forward to 2021. 

Employers all over the country — and not just those isolated to high-risk healthcare settings — have introduced COVID-19 vaccination policies in the wake of a deadly pandemic. These policies range from vaccine policy “requirements” that allow workers to opt-out of vaccination and undergo rapid testing that may or may not be funded by the employer, to more extreme policy “mandates” that place unvaccinated workers on unpaid leave or threaten them with discipline and dismissal. 

Most employers’ policies cite public-health guidance, occupational health and safety legislation, and/or the science as the rationale to justify these vaccine mandates. Most unvaccinated workers do not qualify for the narrow legal exemptions provided by human rights codes.

As the consequential impacts of these policies begin to be felt by unvaccinated workers, some fully vaccinated workers are also becoming increasingly concerned about employers mandating continual COVID-19 booster shots as an ongoing condition of employment. Not surprisingly, some unions are challenging employer vaccine mandate policies through grievances and labour arbitrations.

A critical question now is whether labour arbitrators will follow the previous approaches adopted by Kaplan and Hayes on employer flu vaccine mandates, or whether COVID-19 is such an unprecedented context that these cases are not applicable. The results of three recent labour arbitration cases are informative.

• In Electrical Safety Authority v. Power Workers’ Union, Arbitrator Stout ruled in favour of the union that the employer’s policy, which threatened unvaccinated workers with dismissal, was unreasonable, noting that testing was a reasonable alternative.

  Stout also made clear his opinion of the choices of the unvaccinated, noting that his decision should not be seen as “vindication” or “a victory” for those “misguided” individuals who “choose, without a legal exemption, not to get vaccinated” as they are “acting against their own and society’s best interests.”

• In Ontario Power Generation v. Power Workers’ Union, the employer’s policy required unvaccinated workers to video-record themselves taking rapid antigen tests on their own time, or be placed on unpaid leave and face dismissal. Arbitrator Murray upheld most of that employer’s policy, however, they required that the employer pay for the workers’ rapid tests. Murray further sided with the employer on their policy to bar unvaccinated workers from accessing the company gym.

• In Paragon Protection Ltd. v. UFCW (Local 333), Arbitrator von Veh ruled in favour of the employer’s very stringent vaccine mandate that provided no alternative options (beyond human rights exemptions) for their security workers. Many (though not all) of the employer’s client sites had their own vaccine mandate policies. Unlike the other two cases, in this case there was a clause in the collective agreement about vaccine mandates that had been negotiated by the union and the employer prior to the pandemic. The arbitrator found the employer’s policy to be consistent with the collective agreement.

As these three cases highlight, what would have once been deemed to be an appropriate “balance” of interests, or a “reasonable” employer policy, has shifted in the context of the COVID-19 pandemic. However, at least two of the arbitrators seem to believe that testing is a reasonable alternative to mandatory vaccination.

One legal pundit has argued that the Kaplan case should have “little precedential value” today because of the high efficacy rate of the COVID-19 vaccine (95 per cent) compared to the flu vaccine. However, this number is based on short-term clinical trial data that does not take into account growing understanding that vaccine protection seems to wane. 

We, on the other hand, believe that labour arbitrators who adhere to the frameworks and approaches outlined in Kaplan and Hayes will find themselves on more solid ground.

Given the emerging real-world data on COVID-19 vaccine efficacy, employer policies that differentiate between the vaccinated and unvaccinated are increasingly becoming as illogical as the previous “vaccinate or mask” influenza mandates already rejected in Ontario hospitals.

By now it should be obvious to anyone who has observed rising cases in highly vaccinated countries like Israel and Denmark, that the vaccinated can continue to be infected with COVID-19.

Granted, those who are vaccinated do substantially reduce their risk of becoming infected compared to the unvaccinated. Also, the vaccines still appear to substantially protect individuals against severe illness and death. However, there are a growing number of studies and public health officials’ acknowledging the waning efficacy of COVID-19 vaccines at preventing infection and transmission.

Infected vaccinated people have also been shown to have the same peak viral loads as infected unvaccinated people, meaning that there is little difference in transmission rates between the two groups, conditional on being infected. Moreover, it was known early in the pandemic that COVID-19 can be spread through asymptomatic transmission. 

While emerging studies document different rates of decline for different groups, any short-lived efficacy of the COVID-19 vaccines at stopping transmission makes COVID-19 vaccines look a lot more like the flu vaccine than the childhood MMR vaccine.

Recall that Arbitrator Hayes’ rationale in 2015 for finding Sault Area Hospital’s “vaccinate or mask” policy to be unreasonable was because it was coercive. COVID-19 mandates that require testing or threaten dismissal for unvaccinated workers are far more coercive than requiring these workers to simply wear a mask. Moreover, if COVID-19 vaccines do not stop transmission, requiring only unvaccinated workers to test, or threatening them with dismissal, are policies that are being implemented with the express objective of driving up worker vaccination rates.

If COVID-19 vaccines mostly limit negative outcomes associated with being infected for an individual worker, such as severe illness and death, but do not stop that worker from transmitting the virus to others, these mandates are akin to an employer forcing their preferred medical treatment on a worker as a condition of employment. Threatening a worker’s job is the most coercive action an employer can take, let alone using that threat to tell workers what preventative drugs they should using.

Whatever you think about the ethical position of the unvaccinated, at the heart of the coercion argument lies a much deeper ethical question about consent over medical interventions.

It is regularly repeated by pundits that unvaccinated workers have a choice — they can get vaccinated or lose their jobs. However, labour relations scholars have recognized for over a century that “absent a welfare state or substantial nonlabor family income, the choice for ordinary workers is less labor vs. leisure and more labor vs. homelessness and starvation.” (Webb and Webb, 1897, cited in Kaufman 2013, 771). As every university researcher and medical professional is aware, consent is only valid if it is informed and not coerced. In a liberal democratic society, where we do not hold people down by force to give them the jab, threatening someone’s job is the most extreme form of duress we can place on another person to get them to “consent” to vaccination.

And some workers will face even more coercion than others. 

Employer vaccine mandates will have inequitable impacts because of their disproportionate consequences on the most marginalized workers. Those with the least amount of economic, political, and social power will be the most compelled by their employers to take the vaccine. A recent Saskatchewan study documented that the likelihood of vaccine refusal and hesitancy was higher among Indigenous people in the province, as well as those with lower education levels and higher levels of financial instability. 

Employers have not explained why such widespread mandates are necessary, especially for workers at very low risk of exposure in the workplace. The Kaplan and Hayes cases were adjudicated for health-care workers near vulnerable patients in a high-risk hospital setting, and even in that context it was determined that mask mandates targeted only toward the unvaccinated were unreasonable.

We need more reasonable approaches to COVID-19 workplace health and safety policies that do a better job of balancing individual worker interests with the interests of employers and society. We should not place all our faith in one technology — the vaccine, and avoid unjust stigmatization of one group — the unvaccinated. Employer vaccine mandates threatening unpaid leave or job loss are overly coercive measures that will do little to prevent the continued spread of infection and will hurt all workers. These “jab or job” mandates also coerce the least powerful workers most and serve to further polarize our society.

Dionne Pohler is an associate professor at the University of Saskatchewan Edwards School of Business. Rafael Gomez is a professor and the current director of the Centre for Industrial Relations and Human Resources at the University of Toronto.

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