Contentious mandatory COVID-19 vaccination policies, introduced in response to the COVID-19 pandemic (primarily in fall 2021), have now been around for some time. However, they remain controversial.
Since their inception, mandatory vaccination policies have consistently been challenged
in courts, tribunals, and in front of labour arbitrators as an unreasonable invasion of an individual’s bodily integrity, and questioned about their effectiveness. Almost as consistently, courts, tribunals and labour arbitrators have accepted the federal and provincial health guidelines with respect to the efficacy of the vaccine. For example, Justice Macnaughton in Parmar v. Tribe Management Inc., 2022 BCSC 1675, in finding that the implementation of a mandatory vaccination policy was reasonable, took judicial notice of the fact that “vaccines are safe and effective for use in people and with respect to controlling the spread of COVID-19” and that “[v]arious publications by Health Canada and by the BC Ministry of Health and the Provincial Health Officer cannot reasonably be disputed to be inaccurate.” This has been the prevailing analysis.
Changes in Legislation re Mandatory Vaccination Policies
However, in a recent arbitration decision released December 14, 2023, (full text of decision here) Arbitrator Glass was presented with other expert medical evidence as to the efficacy of the two-dose vaccination series of preventing COVID-19 infection after 25 weeks. After hearing this evidence, Arbitrator Glass determined that:
Once the available data overwhelmingly demonstrated, and prevailing medical opinion graduated to acknowledgement that a two-dose vaccination series after 25 weeks provided statistically insignificant protection against infection, the situation with regard to workplace safety and workplace vaccination mandates fundamentally changed (para 315).
In Arbitrator Glass’ decision, the data demonstrated this no later than spring 2022. While accepting that two-dose vaccination continues to be a reasonable precaution for an individual, it “did not translate, standing alone, into a reasonable justification for a workplace vaccine mandate” after this point (para 315). This is because the rational for vaccine mandates was based on the medical evidence that “unvaccinated workers were more likely to be infected by one of the COVID variants, and therefore more likely to pass it on to others in the workplace”. If the vaccine did not prevent infection of COVID-19 variants after 25 weeks, there remained no justification to require it.
Arbitrator Glass’ decision is a significant departure from the reasoning in previous court and arbitration decisions
and perhaps more importantly represents a departure from the official position of the Office of the Provincial Health Officer (PHO) which continued to assert well into the fall of 2022 that unvaccinated people are more prone to carry and transmit COVID-19 than a vaccinated person. Arbitrator Glass disagreed with the employer’s argument that they could solely rely on the PHO’s directive to support the reasonableness of their mandatory vaccination policy.
Takeaway for Employers
While not binding on other decision makers, this decision is persuasive.
It suggests that most, if not all, mandatory vaccination policies may no longer be reasonable in the workplace.
So where does this leave workplaces that still have mandatory vaccine policies? We suggest that all workplaces revisit their policies and consider receiving both medical and legal advice on the reasonableness of any mandatory COVID-19 vaccination policies.
