IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act,  
1995, as amended,  
(Policy Grievance re COVID-19 vaccine mandate)  
BETWEEN:  
FCA CANADA INC.  
(the “Employer”)  
- and -  
UNIFOR, LOCALS 195, 444, 1285  
(the “Union”)  
AWARD  
Arbitrator:  
Marilyn A. Nairn  
Hearing held:  
May 25, 2022  
APPEARANCES  
For the Union:  
For the Employer:  
Tim Gleason, Rebecca Glass  
Clifford J. Hart, Maddie Axelrod  
1
AWARD  
1.  
This decision deals with the issue of the reasonableness of the Employer’s Vaccination  
Policy (the “Policy”) implementing a COVID-19 vaccine mandate. Individual grievances filed after  
the implementation of the Policy are outstanding and have been deferred pending this decision.  
There is no dispute as to my jurisdiction to hear and determine this grievance.  
2.  
The parties filed a lengthy agreed statement of fact as well as significant documentary  
materials. No viva voce evidence was called. Submissions were heard on May 25, 2022 and were  
livestreamed so that the proceedings could be observed by interested employees.  
3.  
There are now a considerable number of arbitration decisions dealing with the  
implementation and maintenance of employer policies requiring employees to be vaccinated  
against COVID-19 in order to remain actively working. There is no real dispute here as to the  
generally applicable legal principles set out in those decisions. The factors set out at paragraph  
34 of KVP, infra, must be assessed. The fundamental factor in dispute in this case is the  
reasonableness of the Policy in the circumstances of the Employer’s workplaces in the context of  
changing nature of the COVID-19 pandemic.  
SUMMARY OF THE FACTS  
The Workplaces  
4.  
Reference to the “Employer” in this decision is the named entity on the collective  
agreement, FCA Canada Inc., which is a wholly-owned subsidiary of Stellantis N.V. (“Stellantis”).  
The Policy was implemented on a national basis for all Stellantis sites whether  
manufacturing/assembly operations, parts distribution warehouses, research/development,  
business centres, training centres, or offices.  
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5.  
This grievance has been filed by three local unions representing employees at the  
Windsor Assembly Plant (“WAP”), the Security Unit at the WAP, and employees at the Brampton  
Assembly Plant (“BAP”). The WAP also houses the work and workforces of Fiat Chrysler  
Automobile Transport (“FCAT”), the Vehicle Completion Centre (“VCC”), and Automotive  
Research and Development (“ARDC”).  
6.  
WAP employs approximately 3,445 active full-time employees, 266 temporary part-time  
employees and there are approximately 823 employees on leave, layoff, or medical or other  
absences. An additional 261 are actively employed by FCAT, VCC, and ARDC, with 28 inactive  
employees. Of the 3,445 WAP employees, approximately 1,724 work a day shift; 1,595 on an  
evening shift, and 126 on a night shift.  
7.  
The WAP manufactures 849 vehicles each day over two production shifts. Each vehicle  
moves through a complex production line of 792 different workstations, spending approximately  
50 seconds at each station. Of the 792 workstations, approximately 547 normally have two or  
more employees completing the same work or working within six feet of one another, although  
some stations have been modified to promote distancing.  
8.  
All employees at WAP must access the plant through nine turnstile banks. Depending on  
the time and the turnstile bank, there can be up to 960 employees entering a turnstile bank each  
day and up to 400 in a given hour (at shift change). Movement within General Assembly to  
restrooms/changerooms requires employees to walk up/down stairs passing each other in close  
proximity. Hourly production workers do not have the option of working remotely.  
9.  
BAP employs approximately 2,339 workers, 1,195 on the day shift; 1,050 on afternoons;  
and 94 on nights. 760 vehicles are manufactured over the day and afternoon shifts, spending  
approximately 64 seconds at each of 586 different workstations. An additional 134 workstations  
do not involve contact with the vehicle. Of the 586 workstations, approximately 185 normally  
3
have two or more employees completing the same work or working within six feet of each other,  
although some stations have been modified to promote distancing.  
10.  
Similar to the WAP, employees at the BAP access the plant through three turnstile banks.  
There can be up to 1,800 employees entering a given turnstile bank each day and up to 500 in a  
given hour. The BAP has approximately 16 restroom/changerooms in General Assembly. There is  
one main cafeteria. Hourly production workers do not have the option of working remotely.  
11.  
Security employees at the WAP provide general security duties, respond to medical  
emergencies, and perform confined space watch and fire marshalling/rescue duties at the WAP.  
There are 40 active full-time and 6 active temporary part-time Security Officers. Twenty-eight  
officers staff three shifts, 11 on days; 9 on afternoons; and 8 on nights. All security personnel may  
utilize the same facilities as the hourly employees depending on proximity to their work  
assignment. They may be present at designated turnstile banks during shift change and they  
interact with all visitors and suppliers entering the facility, checking access to and egress from  
the plant. Security Officers respond to medical emergencies with the medical department on all  
shifts. Security Unit members stationed at the Main Gate and Grand Marais Truck Gate are in  
separate outbuildings using their own shared washrooms. The South 3 Gate has its own office  
with a washroom.  
The COVID-19 Pandemic  
12.  
Illness from COVID-19 comes with risk, including flu-like symptoms, more serious  
pneumonia-like symptoms, the need for hospitalization including mechanical ventilation, and in  
some cases, long-term health consequences and the condition known colloquially as “long  
COVID”, which is still being medically explored. COVID-19 can also be deadly. The virus has caused  
over 13,000 deaths in Ontario and to date, nearly 6.3 million worldwide.  
4
13.  
The COVID-19 virus spreads through respiratory droplets and aerosol particles of varying  
size and range; that transmission occurs mainly in close physical proximity, although transmission  
may occur over a longer range in circumstances such as poor ventilation and/or crowded indoor  
spaces; and that the health outcomes from COVID-19 are variable; from asymptomatic, mild to  
moderate symptoms in most, to severe, including death.  
14.  
The pandemic declared in March 2020 by the World Health Organization (“WHO”) has  
moved through five waves. The Pfizer mRNA vaccine was first approved in Canada on December  
9, 2020 for those 16 and older. The Moderna mRNA vaccine was approved shortly thereafter.  
However, vaccinations were initially restricted to certain limited populations.  
15.  
On December 26, 2020, during the second wave of the pandemic, the provincial  
government ordered a province-wide shutdown. As an identified essential business, these plants  
continued to operate. On January 14, 2021, the province issued a stay-at-home order. On January  
21, 2021, a second state of emergency was declared, which was lifted on February 10, 2021. The  
stay-at-home order was phased out by region, based on public health indicators, between  
February 10 and March 8, 2021. In Windsor and Brampton (Peel Region), the stay-at-home order  
was in place until February 16, 2021 and March 8, 2021, respectively. Brampton’s stay-at-home  
order was lifted last, in view of the increased risk levels in that Region at the time.  
16.  
Canada received a limited supply of vaccines in the winter of 2021 due to significant  
worldwide demand. As a result, most Canadians were not eligible or able to be vaccinated until  
the spring and summer of 2021.  
17.  
The third wave, beginning in or about mid-March 2021 was driven by a new variant  
(“Alpha”) which was associated with a higher risk of hospitalization and death, and which  
challenged the province’s hospital and intensive care (“ICU”) capacity. A third state of emergency  
was declared and a further stay-at-home order issued on April 8, 2021 and was maintained until  
June 2, 2021.  
5
18.  
Vaccinations became more readily available in early May 2021 for healthcare workers. On  
May 31, 2021 the Ontario government mandated COVID-19 immunization policies for certain  
congregate settings, such as long-term care homes.  
19.  
In July 2021, the dominance of new Delta variant ushered in a fourth wave of the  
pandemic in Ontario. The Delta variant was considered to have higher transmissibility and  
secondary attack rates than the original SARS- CoV-2 virus and was associated with a high risk of  
hospital and ICU admission.  
20.  
At the time, the Director for the Centres for Disease Control advised that the risk of a  
breakthrough infection for vaccinated people with symptoms upon exposure to the Delta variant  
was reduced by seven-fold and that the reduction was 20-fold for hospitalizations and death.  
That is, infection in vaccinated individuals was twenty times less likely to result in serious illness  
or death compared with individuals who were not vaccinated. The WHO has stated that being  
fully vaccinated will help reduce the likelihood of new variants emerging.  
21.  
On August 17, 2021, the Ontario government made COVID-19 vaccination policies  
mandatory for high-risk settings, to be effective by September 7, 2021. These included hospitals,  
home and community care service providers, post-secondary institutions, licensed retirement  
homes, women’s shelters, and congregate group homes.  
22.  
On or around August 20, 2021, local public health units issued recommendations that  
employers implement vaccination policies. The then regulations under the Reopening Ontario  
Act required open businesses to comply with the “advice, recommendations and instructions of  
public health officials”.  
23.  
On September 16, 2021, the Interim Order authorizing use of the Pfizer and Moderna  
vaccines expired and these vaccines received full approval under the federal Food and Drug  
Regulations. On October 22, 2021, the Provincial government announced its Plan to Safely  
6
Reopen Ontario and Manage COVID-19 for the Long Term. This plan set out a gradual lifting of all  
remaining public health and workplace safety measures by March 2022. It also included an  
announcement that the proof of vaccination system and face covering requirements would be  
phased out within six months. In the meantime, all then-current public health measures  
remained in place.  
24.  
By December 2021, the spread of the Omicron variant ushered in a fifth wave of the  
pandemic in Ontario. The Omicron variant is highly transmissible. Public Health Ontario  
estimated that each Omicron case infected 3.5 times more individuals than Delta between  
November and December 2021. Also by December 2021, early surveillance data suggested a  
significant reduction in vaccine effectiveness against symptomatic infection for Omicron,  
although the Ontario Science Table indicated that vaccination was likely to continue to provide  
strong protection against severe illness.  
25.  
On December 17, 2021, the Provincial government announced new restrictions for  
businesses and social gatherings to slow the spread of the Omicron variant, including capacity  
limits for a number of businesses.  
26.  
On December 20, 2021, the Provincial government opened eligibility to obtain a COVID-  
19 booster shot to everyone 18 years and older. In early January 2022, restrictions were  
instituted to return students to online learning, impose capacity limits in various indoor settings  
and at public events, as well as closing gyms and other recreational spaces.  
27.  
On March 14, 2022, the Provincial government lifted vaccine mandates in schools,  
hospitals, and long-term care homes.  
28.  
On March 21, 2022, face mask mandates in Ontario were lifted in most settings, including  
schools, restaurants, gyms, and retail settings. That same day, the City of Windsor ended its state  
of emergency related to COVID-19. The surrounding Essex County ended its state of emergency  
7
on April 22, 2022. On March 24, 2022, the City of Brampton terminated its state of emergency.  
As of April 4, 2022, most Ontario public service employees were no longer required to be  
vaccinated against COVID-19 or undergo regular COVID-19 rapid testing to go to work.  
Impact of COVID-19 in the Workplace  
29.  
Apart from a two-month shutdown between March 19 and May 19, 2020, at the outset  
of COVID-19, the WAP and BAP remained operational throughout the pandemic. Employees  
continued to work with various health and safety protocols in place introduced in April 2020. The  
43-page “Playbook” generated by the Employer was filed in evidence and summarizes the  
protocols introduced at the plants, including:  
1.  
2.  
3.  
4.  
promoting physical distancing;  
adding physical barriers where distancing was impossible;  
implementing robust sanitization and cleanliness standards;  
requiring all employees to be screened or self-screen for COVID-19 symptoms and  
potential exposures;  
5.  
6.  
mandating employees to wear personal protective equipment, including eye  
goggles or shields, gloves, and Company-issued medical-grade face masks; and  
educating employees on health and safety practices, such as coughing etiquette and  
proper use of masks.  
30.  
The Playbook was updated and redistributed on several occasions. A Return-to-work  
Package was also created and distributed to employees. Other communications were directed at  
steps being taken to promote physical distancing. There was a dispute between the parties as to  
whether protocols were being enforced. The Union used as an example that physical distancing  
on entry and exit from the plants was not possible in practice, a concern with which the Employer  
agreed. The Union asserted that aspects of workplace sanitation had been removed, while  
acknowledging that cleaning materials remain available to employees to sanitize workstations as  
needed. The Employer acknowledged eliminating the dedicated 10 minutes of cleaning time  
8
before the shift, asserting that the tasks of cleaning and disinfecting the workstations were  
incorporated into the normal job.  
31.  
As of January 1, 2022, consistent with public health guidance and public safety  
regulations, the Employer no longer accepted paper copies of the COVID-19 questionnaire upon  
entry. The Union’s assertion that these questionnaires were not being reviewed in a timely way  
acknowledged the Employer’s previous requirement to submit this screening tool on a daily basis.  
The Employer asserted that employees were disciplined for non-compliance with these protocols  
and that audits were conducted to ensure adherence to protocols.  
32.  
On March 28, 2022 the Employer amended its mandatory masking requirements, subject  
to certain internal and community indicators, following the change in provincial health  
guidelines. The WAP did not meet those indicators until April 11, 2022 and again fell below them  
on April 18, 2022, resulting in masking becoming mandatory again. Having initially met those  
indicators, masking became mandatory again at the BAP as of April 18, 2022. As of that date, all  
Employer facilities in Ontario were subject to mandatory masking.  
33.  
Between the spring of 2020 and April 2022 there have been at least 1,096 known positive  
cases of COVID-19 among employees at the WAP and BAP, and 1,221 across Canada. Of the 1,096  
cases, 279 were confirmed prior to January 1, 2022. The remainder 817 cases were reported after  
January 1, 2022 during the Omicron wave.  
34.  
There was one known workplace outbreak (multiple cases traced to the same close  
contact at the workplace). There have been three notifications to the Ministry of Labour for  
workplace exposures at the BAP and seven notifications for workplace exposures at the WAP  
since 2020.  
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The Policy and Its Implementation  
35.  
As COVID-19 vaccines became available, the Union asked the Employer to provide  
workplace pop-up vaccination clinics. In about August 2021, as vaccines became more widely  
available, the Employer began its development of this Policy.  
36.  
The Policy requires employees, contractors, suppliers, and visitors to be fully vaccinated  
(defined as two doses of a two-dose vaccine) in order to attend at the Employer’s work site(s).  
Proof of vaccination status is required. A statutory duty to accommodate those employees who  
have appropriately established medical or religious exemptions from vaccination for COVID-19 is  
acknowledged and supported by the Policy.  
37.  
The Policy, applied nationally, was developed following extensive review of scientific  
literature, government guidance both provincial and federal, best practices within the industry,  
and discussions with internal corporate medical and legal personnel. The Policy was released on  
October 14, 2021, following discussions with the National Union, which publicly supported the  
Policy and which adopted its own mandatory vaccination policy for its employees. The release of  
the Policy in the workplace was communicated by email, physical postings, and through  
employee safety talks.  
38.  
Section 1 of the Policy references both the Employer’s commitment and its statutory  
obligation under section 25 (2)(h) of the Ontario Occupational Health and Safety Act (“OHSA”) to  
take “every precaution reasonable in the circumstances” to provide a safe environment for  
employees and visitors, including against COVID-19.  
39.  
Discussions at the local level occurred on release of the Policy. As a result of those local  
discussions, certain dates were extended and the requirement for employees to be fully  
vaccinated, originally December 17 2021, was extended to December 31, 2021. The Policy states  
10  
that employees not fully vaccinated or not having disclosed their vaccination status by that  
deadline would be placed on an unpaid leave of absence.  
40.  
Part V (A) of the Policy further stipulates that employees may be subject to discipline up  
to and including termination of employment for non-compliance. There is potentially an  
inconsistency at Part V (C) of the Policy where it differently indicates that employees will be  
subject to disciplinary action for non-compliance with the Policy. The evidence established that,  
in administering the Policy, no employee’s employment has been terminated to date. Employees  
have been placed on unpaid leaves of absence.  
41.  
While the Union asserted that some employees had advised that they had not received  
these communications, between October 26 and November 12, 2021, the Employer issued five  
communications to employees regarding the Policy, setting out the Employer’s expectations and  
key dates. It also released a self-reporting tool on October 27, 2021 providing a means for  
employees to upload proof of vaccination to a secure server to which only the Canadian Human  
Resources Manager and one member of corporate human resources have access.  
42.  
Reminders of the deadline were later emailed to employees who had not yet submitted  
proof of vaccination status, advising that a failure to so advise could result in disciplinary action.  
On November 30, 2021, the Employer shared various educational resources and information  
regarding COVID-19 vaccines with employees who were not fully vaccinated, as well as reminders  
that failing to become fully vaccinated in accordance with the Policy would result in an unpaid  
leave of absence. Written warnings were issued to those who still refused or failed to respond  
regarding their vaccination status.  
43.  
On December 22, 2021, and again on December 27 and 31, 2021, the Employer wrote to  
those employees who were not in compliance with the Policy to confirm that they would be  
placed on “indefinite suspension” effective December 31, 2021 (while the choice of the word  
“suspension” was inappropriate, there appears to be no dispute that employees were placed on  
11  
unpaid leaves of absence). On January 4, 2022, the Employer emailed those employees who had  
declared they were partially vaccinated, advising them that, while in violation of the Policy, they  
may be eligible for an extension and to respond as soon as possible.  
44.  
A total of eight meetings between these parties were held in November and December  
2021, with the Union identifying its opposition to the imposition of unpaid leaves of absence and  
potential discipline. The Union asked the Employer to permit the option of rapid testing for  
unvaccinated employees, which was rejected. The Employer did revise the Policy and its related  
processes in response to other of the Union’s concerns.  
45.  
In addition to delaying the effective date, the Employer enhanced its process for the  
confidential storing of employee vaccination status and medical information; it reviewed and  
updated its human rights accommodation process; it implemented special extensions for  
employees who were pregnant, partially vaccinated, or who were retiring by January 31, 2022 (a  
production shutdown in January 2022 meant those retiring would not be in the workplace  
following the deadline).The Employer also allowed some salaried bargaining unit members to  
continue to work from home. The Employer and the Union agreed during these meetings that  
there would not be exemptions granted for employees who refused to disclose their vaccination  
status. The Employer also participated in meetings with representatives of other industry players  
to consider their approaches.  
46.  
As of the hearing, 94.6% of employees in the WAP, the Security Unit, and BAP have  
reported they are fully vaccinated. Three exemptions have been approved on medical grounds.  
According to Exhibit 11 l of the ASF, 262 employees are unvaccinated, of whom 123 are  
continuing to seek a medical or religious exemption under the Policy. 71 employees have not  
disclosed their vaccination status. All of these employees have been placed on unpaid leave.  
12  
47.  
The Union would testify that to date, there is one WSIB case in process with regard to  
serious or permanent illness or injury from the vaccine after the introduction of the Policy.  
However, the Employer has no record of this case.  
Scientific Evidence  
48.  
Without referencing all of the evidence submitted by the parties, the following  
summarizes the key points. The vaccines approved for use against COVID-19 are effective at  
reducing hospitalization and severe illness from COVID-19. They continue to be recommended  
by Health Canada and are endorsed by Health Canada as safe and effective. The National Advisory  
Committee on Immunization (“NACI”) makes a preferential recommendation for the approved  
mRNA vaccines.  
49.  
The mRNA vaccines for COVID-19 were evaluated through large, randomized trials. These  
vaccines demonstrated a high degree of effectiveness at preventing symptomatic infection with  
the original strain of SARS-CoV-2, as well as preventing severe outcomes.  
50.  
Possible side-effects from vaccination can include injection site pain, fatigue, and  
headache. In rare cases, more serious side effects have arisen, such as myocarditis.  
51.  
The efficacy of COVID-19 vaccines likely wanes over time, though to varying degrees  
depending on the subject variant. Vaccines became less effective in preventing symptomatic  
infection and transmission in the face of the Delta variant, although they remained highly  
effective in preventing serious illness, hospitalization, and death.  
52.  
As of early May, 2022, all new COVID-19 infections in Ontario were being caused by the  
Omicron variant. The effectiveness of vaccines has been compromised in the Omicron era. As the  
Omicron wave of the pandemic has surged, emerging evidence suggests that a two dose course  
of an mRNA vaccine is significantly less protection against infection than with prior variants.  
13  
53.  
A pre-print study (a study not yet subjected to peer review) posted on December 14, 2021  
led by Dr. N. Andrews, from the U.K. Health Security Agency reviewed vaccine effectiveness  
against the Omicron variant. It concluded that primary series immunization (2 doses) with either  
Pfizer or AstraZeneca provided limited or no protection against infection and mild disease.  
Boosting with the Pfizer vaccine was found to offer an increase in protection, but at the time that  
this study was conducted, the duration of that increased protection was not known.  
54.  
A more recent briefing from the U.K. Health Security Agency, published April 28, 2022,  
concluded that, while vaccine effectiveness against Omicron from two doses of an mRNA vaccine  
dropped from 65-70% to about 15% by week 25, booster doses of an mRNA vaccine provided  
some renewed protection against symptomatic Omicron infections. Protection against  
hospitalization and death related to COVID-19 remained strong after a second dose but was more  
robust after a booster dose.  
55.  
A Danish pre-print study published in December 2021 found that while three doses of an  
mRNA vaccine provided some protection against transmission of Omicron once infected, the  
comparative levels of transmission between an infected unvaccinated and infected two-dose  
vaccinated person was statistically insignificant.  
56.  
A Swiss study published on April 8, 2022 looked at the levels of infectious viral load (“VL”)  
as between vaccinated and unvaccinated individuals in the first five symptomatic days for  
different variants, including Omicron, and concluded:  
…For Omicron BA.1 breakthrough cases, reduced infectious VL was observed only in  
boosted but not in fully vaccinated individuals compared to unvaccinated individuals.  
57.  
A study conducted by Dr. D. Fisman and other researchers from the University of  
Toronto’s Epidemiology Division of the Dalla Lana School of Public Health, published in the  
Canadian Medical Association Journal on April 25, 2022, concluded that remaining unvaccinated  
increases the risk of infection among those who are vaccinated in a manner that is  
14  
disproportionate to the portion of unvaccinated people in the population. According to this  
study, unvaccinated populations heighten the risk for vaccinated populations, particularly when  
vaccines confer imperfect immunity. The study was not specific to the Omicron variant and did  
not consider waning immunity.  
58.  
A small pre-print study from the U.S. recently found that while two-dose vaccinated  
individuals infected with the Delta variant had a significantly reduced viral load compared to  
unvaccinated individuals, this was not the case for those infected with the Omicron variant. For  
Omicron breakthrough cases (infection of those who have been vaccinated), a reduced infectious  
viral load was only observed in individuals with a booster shot but not when comparing fully  
vaccinated (two dose) individuals to the unvaccinated.  
59.  
A recent nonrandomized clinical study conducted in Israel assessed the efficacy of a  
fourth dose of a COVID-19 mRNA vaccine administered three months after a third (booster) dose  
among health care workers. The data showed that a fourth dose produced an immune response,  
was safe, and was somewhat efficacious against symptomatic disease (31 to 43%) although not  
against infection itself. While most health care workers who became infected with the Omicron  
variant reported negligible symptoms, they nevertheless had relatively high viral loads. The  
authors concluded that those who were infected were also infectious, despite the number of  
vaccine doses received.  
60.  
Sub-lineages of the Omicron variant have now also emerged, with a reduction in vaccine  
efficacy against symptomatic infection. However, Public Health Ontario continues to advise  
receiving a complete COVID-19 vaccine primary series and, for those eligible, the recommended  
booster dose(s), so as to provide optimal protection against severe outcomes.  
61.  
Access to PCR testing, the “gold standard” for diagnosing COVID-19, was severely  
restricted for the public as of December 31, 2021. Rapid Antigen Tests (“RATs”) were reliable and  
accurate in respect of testing for the Delta variant.  
15  
62.  
However, RATs are less sensitive in detecting the Omicron variant compared to the Delta  
variant, especially in the initial days following infection. For asymptomatic testing, the Ontario  
Science Table has suggested that to meaningfully reduce transmission in moderate-risk settings  
(such as workplaces), when community spread is high, a regimen of rapid antigen testing three  
to five times per week should be adopted as a single negative test would not reliably rule out  
infection. Veracity of RAT results can also be affected by the test sample used and manner of  
deploying the test.  
Other Work Sites  
63.  
CpK Interior Products (“CpK”) is a wholly-owned subsidiary of the Employer. It  
manufactures interior automotive parts supplies parts to Stellantis. Production employees at CpK  
in Guelph are represented by Unifor, Local 1917. CpK has not required proof of vaccination to  
work at its plants and has hired at least two unvaccinated BAP employees currently on unpaid  
leave. There was a dispute between the parties as to whether the operations and circumstances  
at the Guelph CpK plant can be appropriately compared to those at the WAP or BAP.  
64.  
Stellantis operates a plant in Detroit, Michigan that performs substantially similar work  
to the WAP. Those employees are not subject to a mandatory vaccination policy. The parties  
dispute whether that difference is based on applicable state law. General Motors implemented  
a vaccine mandate while the Ford Motor Company did not.  
THE PARTIES’ POSITIONS  
65.  
The union's fundamental position is that the evolution of the COVID-19 virus has been  
such that, while a vaccine mandate policy may have made sense in the summer and early fall of  
2021 in relation to the Delta variant, the available science supported a conclusion that a vaccine  
mandate would not achieve the goal of providing protection for employees in the workplace in  
relation to Omicron and subsequent variants having regard to the waning efficacy of a two-dose  
16  
vaccination. The Policy therefore failed to appropriately balance the interests of those employees  
who have chosen not to be vaccinated for various reasons with the responsibility to maintain a  
safe and healthy workplace, argued the Union.  
66.  
The Union sought the suspension of the Policy from its inception and full compensation  
for all employees placed on unpaid leave.  
67.  
The Union also asserted that, while the Employer had shown a willingness to cooperate  
with the Union in developing its earlier responses to COVID-19 in the workplace, imposing this  
mandate reflected a repudiation of that cooperation and its commitment in Article 18.12 of the  
collective agreement to adapt to changing dynamics.  
68.  
The Union reviewed the caselaw in detail, noting the required exercise of balancing the  
various interests in addressing a real problem in the workplace. It argued that in those cases  
where a vaccine mandate policy was found to be reasonable, it was accepted that vaccination  
reduced transmission in the workplace, thereby enhancing the safety of employees in the  
workplace, a factor, it argued, that has since changed. It noted the express recognition in the  
November 11, 2021 decision in Electrical Safety, supra, that, because the circumstances of the  
pandemic are fluid, similarly a mandate may be reasonable at some point and in some  
circumstances but may be unreasonable at other times and in other circumstances.  
69.  
The Union argued that the earlier cases did not typically support a finding that vaccine  
mandates were reasonable. Recent cases that found otherwise were distinguishable, the Union  
argued, involving workplaces where the mandate was government-imposed, and/or where  
workers cared for vulnerable populations in health care or education (Chartwell, Revera, TDSB,  
all infra); which had lease requirements in order to access federal property where a mandate had  
been imposed (Bunge, infra); where the available science supported a conclusion that vaccines  
reduced the spread of infection (Elexicon Energy Inc, Maple Leaf Foods, both infra); and where  
employees needed to access customer property (Coca-Cola, infra). Many of those workplaces  
17  
had also experienced more significant impacts from the virus prior to imposing the vaccine  
mandate, argued the Union.  
*
70.  
It is the Employer’s position that the Policy meets each and all of the factors set out in  
KVP, infra, noting that the reasonableness of the Policy was to be considered as of the date of  
implementation and continuing, not solely as of the date of hearing. It relied on its OHSA  
obligation to take every precaution reasonable in the circumstances to ensure the protection of  
its workers and urged a careful review of the materials and caselaw filed, which, it argued,  
supported a conclusion that the Policy was reasonable in the fall of 2021 and continues to be  
reasonable in the context of the risks associated with the ongoing pandemic.  
71.  
The Employer acknowledged that the science continues to evolve but argued that it is far  
less consistent and clear than the Union would suggest, reiterating that vaccines remain the  
predominant effective measure against COVID-19, particularly against serious illness and/or  
death, as well as transmission, and that there was a greater proportionate risk arising from  
remaining unvaccinated, putting vaccinated employees at higher risk. Public health guidelines  
were and continue to be directed at encouraging vaccination, and it remains more likely, argued  
the Employer, that unvaccinated individuals will become infected and transmit the virus and  
present more risk than those who have been vaccinated. Even assuming the argued waning  
efficacy of the vaccine over a period of six months would warrant the Policy continuing in effect  
until June 30, 2022 argued the Employer.  
72.  
The Employer rejected any assertion that the Policy reflected an Employer unwillingness  
to cooperate with the Union or to adapt to the pandemic’s changing dynamics. Article 18.12 of  
the collective agreement had general application to all sites and was negotiated with the National  
Union, which did not challenge the Policy, noted the Employer.  
73.  
The Employer also reviewed the caselaw and rejected the Union’s argument that the  
framework set out in the St. Michael’s Hospital decision, infra, was applicable and distinguished  
18  
that decision on the basis that, unlike here, the collective agreement in that case specifically  
provided that employees (nurses) had the right to refuse required vaccinations. The January 4,  
2022 decision in Electrical Safety, infra, was also distinguishable, argued the Employer, as the  
policy considered in that case was changed from a union-supported voluntary vaccination and  
testing program to a mandatory vaccine requirement without any change in circumstances. It  
also arose in circumstances where 85% of the workforce worked from home.  
74.  
While acknowledging that the workplace and external circumstances were different in  
some of the cases, the Employer argued that decisions in Bunge, MLSE, Chartwell, Coca-Cola  
Bottling, TDSB, Maple Leaf Foods, and Canada Post Corporation (Joliffe), all infra, supported the  
implementation of workplace vaccine mandates.  
75.  
It was the Employer’s alternate position that, depending on what evidence was accepted,  
it was within the arbitrator’s authority to find that the Policy required an end date, while leaving  
the remainder of the Policy intact.  
*
76.  
The Union replied that the repudiation of Article 18.12 of the collective agreement  
occurred when the Policy was unilaterally implemented against the Union’s objections. The  
Union cautioned that evidence relied on by the Employer dealt with pre-Omicron data and was  
no longer relevant. In response to the Employer’s alternative argument, the Union argued that  
there is no logical basis for imposing an end date as opposed to suspending the Policy from its  
inception.  
DECISION  
77.  
I was referred to and have reviewed the following awards:  
-United Food and Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd., Re,  
2021 CarswellOnt 1604, November 9, 2021 (Von Veh);  
19  
-Electrical Safety and Power Workers’ Union, 2021 CarswellOnt 18219, November 11, 2021  
(Stout);  
-Electrical Safety and Power Workers’ Union, 2022 343, January 4, 2022 (Stout);  
-Ontario Power Generation and the Power Workers Union, November 12, 2021 (Murray);  
-Bunge Hamilton Canada and United Food and Commercial Workers Canada, Local 175, 2022  
43, January 4, 2022 (Herman);  
-Hydro One Inc. v Power Workers’ Union, 2022 CarswellOnt 1653, January 31, 2022 (Stout);  
-Chartwell Housing REIT (The Westmount, the Wynfield, the Woodhaven and the Waterford) v  
Healthcare, Office and Professional Employees Union, Local 2220, 2022 6832, February 7,  
2022 (Misra);  
-Power Workers Union’ and Elexicon Energy Inc., 2022 7228, February 4, 2022 (Mitchell);  
-Unifor Local 973 and Coca-Cola Canada Bottling Limited, 2022 25769, March 17, 2022  
(Wright);  
-Revera Inc. (Brierwood Gardens et al) and Christian Labour Association of Canada, 2022  
28657, April 1, 2022 (White);  
-Toronto District School Board and CUPE, Local 4400, 2022 22110, March 22, 2022  
(Kaplan);  
-St. Michael’s Hospital and the Ontario Nurses’ Association, 2018 CarswellOnt 14889, September  
6, 2018 (Kaplan);  
-Sault Area Hospital and Ontario Hospital Association, Ontario Nurses Association, 2015  
CarswellOnt 13915, September 8, 2015 (Hayes);  
-Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd., 1965 CarswellOnt 618, May 30,  
1965 (Wren, Robinson, Hicks);  
-Canada Post Corporation and Canadian Union of Postal Workers, November 30, 2021 (Burkett);  
-Canada Post Corporation and Canadian Union of Postal Workers, April 27, 2022 (Jolliffe);  
-Maple Leaf Foods Inc., Brantford Facility v United Food and Commercial Workers Canada, Local  
175, 2022 28285, April 10, 2022 (Chauvin);  
20  
-Algoma Steel Inc. and USW, Local 2724, Re, 2022 CarswellOnt 1287, February 8, 2022 (Kaplan);  
-Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2022 544, January 12,  
2022 (Jesin);  
-Heather Wong v. Toronto Public Library, 2022 34027, April 21, 2022 (Rogers, Vice-Chair).  
78.  
At the outset, I reject the argument that the Employer repudiated its commitment under  
Article 18.12 of the collective agreement. That provision is titled “FCA Canada and Unifor  
Leadership Statement Regarding the COVID-19 Pandemic” and is a joint union/employer  
statement made to employees in October 2020. It acknowledges the precautionary measures  
taken by the Employer from the outset of the pandemic and provides:  
We also understand that we’ll need to continue to adapt to changing dynamics and  
recognize the critical importance of working together through to the end of this pandemic.  
Safety must be our top priority at all of our Canadian FCA facilities. Your active commitment  
and participation will help reduce the risks to our respective members/employees, and  
support health and safety within our communities.  
79.  
The Policy was introduced by the Employer with the support of the National Union, a  
signatory to the collective agreement. When it became apparent that there was concern at the  
local level, the Employer responded to those concerns by amending the Policy and adapting its  
implementation to address those concerns, while retaining the mandate. These circumstances  
are not a repudiation of any commitment in Article 18.12 of the collective agreement. Rather,  
they reflect the difficult balancing of interests faced by all of the workplace participants, one  
which this decision must ultimately address.  
Does the Policy meet the requirements of KVP?  
80.  
With respect to the factors set out in KVP, infra, the real dispute in this case is whether  
the Policy is reasonable.  
81.  
Briefly reviewing the remaining KVP factors, the Policy is not inconsistent with the  
collective agreement. The Union acknowledged that the Employer has the right under the  
21  
management rights clause in the collective agreement to impose reasonable rules in the  
workplace and that employee safety is a legitimate objective of those rules. Nor does the  
unilateral imposition of the Policy constitute a violation or repudiation of Article 18.12 of the  
collective agreement.  
82.  
The Policy was brought to the attention of employees affected before the Employer acted  
on it. The development and implementation of the Policy was done in consultation with the  
National Union and subsequently with the local unions taking issue here. The Employer revised  
the Policy and its implementation and administration in direct response to concerns raised by  
the local unions. It communicated its expectations under the Policy to the affected employees in  
various ways on an ongoing basis prior to acting on it.  
83.  
Employees were also notified of the consequences for any failure to comply with the  
Policy. Reminders, then warnings, in addition to educational materials were provided in advance  
of the deadline to those who had not yet responded in accordance with the Policy. Finally, the  
Policy has been consistently enforced. I am not persuaded that the seeming inconsistency noted  
in paragraph 40 herein renders the Policy unclear or equivocal. Nor was it relied on by the Union.  
Is this Vaccination Policy Reasonable?  
84.  
In assessing reasonableness, context is crucial. In Coca-Cola Bottling, supra, Arbitrator  
Wright considered the reasonableness of a vaccine mandate policy very similar to the one at issue  
and commented regarding the general context under which that policy was implemented:  
27. … context is important when assessing the reasonableness of a workplace rule or policy  
that may have workplace consequences for individual employees. The general context is  
known to everyone. The Policy is a response to a global health pandemic that has so far  
claimed 6 million lives worldwide. It makes mandatory the use of vaccines, that have proven  
to be safe and effective at combatting not only the transmission of the virus, but also at  
providing significantly greater protection from serious illness, hospitalization, and death for  
those individuals who are fully vaccinated. There is no question that it is extraordinary for  
an employer to enact a workplace rule or policy that impacts an employee’s right to privacy  
and bodily integrity, but there can be no dispute that the global COVID-19 pandemic is an  
extraordinary health challenge. Not only are employers obliged to ensure that the health  
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and safety of an employee is always protected, under s 25(2)(h) of the Occupational Health  
and Safety Act, employers are statutorily required to “take every precaution reasonable in  
the circumstances for the protection of a worker.”  
85.  
That general context can largely be adopted with respect to the implementation of this  
Policy. Its stated purpose is to protect and enhance employee safety. The Employer developed  
the Policy after wide consultation and consideration of public health and governmental directives  
and guidelines. The Employer followed public heath advice recommending the implementation  
of such policies as a means of enhancing protection against COVID-19. The Employer’s early  
consideration of a policy came shortly after vaccines became more widely available. Delay in its  
implementation can in part be attributed to the Employer’s accommodation of concerns raised  
by the local unions.  
86.  
The specific context of this workplace is reasonably comparable to those considered in  
Coca-Cola Bottling and Maple Leaf Foods, supra, where vaccine mandates were upheld. The vast  
majority of employees must attend at the workplace and cannot work from home. The workforce  
is large, the physical layout of the facilities is such that distancing cannot always be maintained  
and significant congestion at change of shift in entering and exiting the facilities cannot be  
prevented or ameliorated. A considerable number of the workstations require workers to be in  
close proximity even with adaptations. The security employees work throughout the WAP and  
also come into regular contact with suppliers and visitors.  
87.  
The Employer introduced significant preventative measures from the outset but also  
adapted and adjusted those requirements, such as temperature checks. Masking mandates were  
adapted and reflective of internal and community indicators and were both lifted and  
reintroduced in response to those indicators. That the facilities were able to continue operating  
with only one outbreak and a relatively low number of infections until 2022 is a testament to the  
measures instituted from the outset and the workplace participants commitment to those  
measures but would not preclude the Employer from instituting further measures if reasonably  
warranted.  
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88.  
The various terms of the Policy are reasonable in that the handling of employees’ vaccine  
status information is severely restricted and controlled. The Policy recognizes the duty to  
accommodate employees who have appropriately established an exemption to vaccination  
pursuant to identified protected grounds under the Ontario Human Rights Code. Any individual  
issue of discipline remains subject to challenge through the grievance and arbitration process  
under a ‘just cause’ review.  
89.  
A testing regime was not a reasonable alternative to vaccination. At the time and  
continuing, PCR tests were not readily available. RATs are not sufficiently reliable in identifying  
infection, thereby avoiding transmission of the virus. Nor does the availability of other measures  
necessarily render this Policy unreasonable (see also Bunge, supra, at paragraph 33). The vaccine  
mandate policy in Coca-Cola Bottling was found to be reasonable even while that employer also  
implemented a mandatory rapid testing program.  
90.  
The fact that a vaccine mandate was not introduced by some industry employers  
(including CpK) is not persuasive as the evidence also showed that vaccines mandates were  
introduced by other industry employers, including across all Stellantis sites in Canada and at  
General Motors.  
91.  
The caselaw provided by the parties deals with many of the same issues and the  
commentary in those decisions is generally applicable here, even while particular circumstances  
may vary. The arbitrator in Coca-Cola Bottling, supra, balanced the competing interests and  
concluded in that case:  
36. The Union also expresses concern that an employee’s decision to not get vaccinated is  
not made lightly…There is no doubt that this is true, but it cannot, in my view, undermine  
the reasonableness of the Policy. Under the terms of this Policy, employees who can  
establish that they are unable to take any of the COVID-19 vaccines for a reason protected  
by the Ontario Human Rights Code, including on the basis of creed, are entitled to seek  
individual accommodation. Short of that, an employee’s personal belief—however strongly  
held—must give way to the health and safety concerns that animate the Policy. COVID-19  
can lead to serious illness and death. Two employees at the Company died from the disease.  
24  
In that context, an employee’s personal beliefs cannot override the Employer’s interest in  
doing everything possible to maintain the health and safety of the workplace.  
(emphasis added)  
92.  
I observe that there is no “right” to remain unvaccinated and remain in active  
employment. The right is one of personal autonomy and bodily integrity, in this circumstance,  
having the choice to remain unvaccinated. Exercising that choice may give rise to other impacts.  
For every right there is a corresponding responsibility – the Employer has the right to make  
workplace rules but has the corresponding responsibility to ensure that those rules are  
reasonable. An employee has the right to remain unvaccinated but has a corresponding  
responsibility not to place co-workers at increased risk as a result. Notably, the tension between  
these two interests can be acute, because a COVID-19 vaccine mandate was not an original  
condition of employment but has been newly introduced into the workplace, affecting existing  
employees who are now faced with what, for some, is a significantly difficult choice between  
remaining unvaccinated or continuing in active employment.  
93.  
There is a real problem to be addressed. This pandemic was and is not over. The positivity  
rate in these workplaces has increased. The evidence overwhelmingly supports a conclusion that  
vaccination against COVID-19 has been and continues to be key in reducing serious outcomes  
from infection by the virus, regardless of the variant. Absent those vaccines, readily available to  
Ontario adults only one year ago, it is disturbing to consider where we might be today. Much  
about the long term outcomes from infection remain unknown. Although not referenced in the  
agreed facts but contained in the materials from the Ontario COVID-19 Science Advisory Table,  
they described “Long COVID” on April 14, 2022 as “associated with serious neurologic illness,  
heart attacks, stroke, and long-term impairment”.  
94.  
The risks from contracting COVID-19 continue to outweigh the risks from the vaccine.  
95.  
A number of decisions referred to uphold vaccine mandate policies implemented in those  
workplaces, including the decisions in Coca-Cola Bottling, Maple Leaf Foods, and Canada Post  
25  
(Joliffe). While the specific context of those workplaces varies and none replicate the  
circumstances here, there are significant similarities in the nature of the workplaces, the  
preventative measures taken and the limits of those measures, and some similar workplace  
impact as considered in those three decisions. All were also responding to the same concern with  
the same objective as this Employer. This Employer and its workforce seem to have largely  
managed to avoid the more significant workplace impacts suffered in other workplaces. Those  
decisions also engage the same exercise of balancing the individual and Employer interests to  
assess the reasonableness of vaccine mandates imposed in the fall of 2021 and as late as January  
2022. These decisions were considered and issued by the latter part of April 2022 during the  
Omicron wave.  
96.  
This decision is being written while COVID-19 restrictions continue to change. I take  
judicial notice of the federal government announcement of June 14, 2022, lifting vaccine  
mandates for federal public servants and federally regulated transportation workers effective  
June 20, 2022. Both levels of government have concluded, not without controversy, that their  
vaccine mandate programs are not currently required to meet their health and safety objective.  
97.  
However, as compared with many public sector employers where vaccine mandates had  
been imposed by September 2021, and enforcement of those policies was underway in the fall  
of 2021, these workplaces were at higher risk during that period when the Delta variant remained  
present. That those employers have now lifted vaccine mandates does not necessarily support a  
conclusion that this mandate must be lifted. Those workplaces have had a longer period of time  
to ensure employee uptake of vaccination, consider legitimate exemptions, and enforce non-  
compliance with the mandate.  
98.  
The Union argued that Omicron has significantly changed the landscape concerning the  
efficacy of vaccinations and that findings that unvaccinated individuals put vaccinated individuals  
at higher risk were based on pre-Omicron data.  
26  
99.  
The Union relied heavily on the Danish study published in December 2021 that found that  
comparative levels of transmission between an infected unvaccinated person and an infected  
two-dose vaccinated person were “statistically insignificant”. That study concluded that the rapid  
spread of Omicron “can be ascribed to the immune evasiveness rather than an inherent increase  
in the basic transmissibility”. The Union argued that this supports its assertion that being fully  
vaccinated, defined in the Policy as two doses, does not meet the objective of limiting  
transmission or reducing risk posed by unvaccinated employees.  
100. Also in support, the Union points to the fact that there have been significantly more  
positive cases in the workplace in 2022 (all attributed to Omicron), since the Policy has been in  
effect and unvaccinated employees have been removed from the workplace.  
101. The Swiss and U.S. studies specifically considered viral loads in Omicron-infected  
individuals. As between vaccinated (two-dose) and unvaccinated individuals they found little if  
any difference in viral load, a significant indicator of risk of transmission. A reduction in viral load  
was observed with a booster.  
102. The study from the Dalla Lana School of Public Health did not consider Omicron or waning  
immunity and therefore is of limited assistance. The U.K. Health Security Agency reported in its  
April 28, 2022 Vaccine Surveillance Report at page 11 that estimates for vaccine effectiveness  
against infection with the Omicron variant were not yet available.  
103. The opportunity to reduce pandemic restrictions in the community has been tied to high  
community vaccination rates. Close to 95% of the workforce is fully vaccinated under the Policy.  
Vaccination continues to be recommended by public health authorities and by all levels of  
government. Where vaccines are effective at preventing infection, it follows that they are also  
effective at preventing or limiting transmission. Emerging evidence does indicate that a two-dose  
vaccine regimen provides significantly less protection against infection from Omicron and its sub-  
variants than with prior variants.  
27  
104. While protection from symptomatic infection has waned under a two-dose vaccine  
regimen in the Omicron era, it remains the case that a two-dose vaccine regimen continues to  
provide greater protection from serious outcomes for vaccinated individuals compared with no  
vaccine.  
105. A booster shot has been confirmed as increasing vaccine efficacy for a period and is  
recommended. As of April 14, 2022, the Ontario Science Advisory Table defines a “complete  
vaccine series” as 2 doses in children, 3 doses in adolescents and adults, 4 doses in older adults  
and high-risk groups”, stating that “this provides strong protection against hospital and ICU  
admission and is the best defence against getting symptoms and spreading COVID-19”.  
106. The literature confirms that, at this time, no one can predict with any accuracy whether  
the COVID-19 virus will become more or less virulent over time, only that it will continue to  
evolve. Epidemiological study will continue to assess the risks of the disease and the development  
of and benefits and/or risks of then current vaccines, thus helping to inform the determination  
of whether a workplace vaccine mandate at any point is reasonable. Those evidence-based  
assessments will inevitably lag behind the virus’ evolution, as will an employer’s ability to  
appropriately assess the ongoing reasonableness of a vaccine mandate.  
107. Having regard to all of the above, I find that the Policy when introduced was reasonable  
and continued to be reasonable in its application. However, after careful review and not without  
considerable personal reservation, I hereby find 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. Rather, the evidence supports a conclusion that  
there is negligible difference in the risk of transmission in respect of Omicron as between a two-  
dose vaccine regimen and remaining unvaccinated. There is, under the definition in the Policy,  
no longer a basis for removing unvaccinated employees from the workplace. While the Union  
28  
would argue that such a conclusion was available in December 2021, I disagree. More evidence  
was required of both the waning efficacy of the two-dose regimen against Omicron and the  
relative risks of transmission before that conclusion could responsibly or reasonably be drawn,  
given the history of this virus. Where matters of health and safety are involved, it is not  
unreasonable to err on the side of caution.  
108. The Policy does not incorporate a periodic review. Some delay in responding to changing  
circumstances and any resulting risk assessment is inevitable. Providing an acknowledged  
mechanism for ongoing, periodic review within a vaccine mandate policy may be prudent.  
109. This decision should in no way be taken as support for remaining unvaccinated against  
COVID-19, absent a legitimate exemption. The decision is referable to the particular  
circumstances of these workplaces over the relevant period, in relation to the Policy as written  
and the available science. Any or all of those circumstances may change.  
REMEDY  
110. Having regard to the finding in paragraph 107 above, I declare the Employer’s Vaccination  
Policy, introduced on October 14, 2021, to be of no force or effect, effective June 25, 2022. I am  
prepared to provide the Employer with a short window to consider and address whatever flows  
from this decision before the Policy is vacated.  
111. This grievance is therefore allowed in part. I will remain seized with respect to any issue  
arising out of the implementation of this award.  
Dated at Toronto, Ontario this 17th day of June, 2022.  
“Marilyn A. Nairn”  
______________________________________________  
Marilyn A. Nairn, Arbitrator.  


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