A recent arbitral decision provides hints at the analysis that the court may ultimately undergo if faced with a challenge to a mandatory vaccination policy. In Canada Post Corporation and Canadian Union of Postal Workers the arbitrator was asked to issue a cease and desist order in relation to the employer’s mandatory vaccination policy. The employer’s mandatory vaccination policy required all employees to attest to having been vaccinated, failing which they would be put on unpaid leave. As an alternative to vaccination, the union proposed self-administered antigen tests prior to each shift. In denying the union’s application, the arbitrator considered expert evidence with respect to the efficacy of vaccines versus testing. That evidence established as follows:
- Vaccination is safe and effective.
- There is “significantly lower” risk of becoming infected with COVID-19 if a person is vaccinated.
- Vaccination represents the most effective strategy to reduce transmission in a workplace such as Canada Post.
- Rapid antigen testing is a better diagnostic test than screening tool.
- Rapid antigen testing cannot be considered equivalent to vaccination as a means of reducing transmission.
- The ideal frequency of testing is unknown and early infection might not be detected with rapid antigen testing.
- The sensitivity of a rapid antigen test might be compromised if conducted by an untrained employee and not by laboratory or health care professions.
This is the first decision to have considered expert evidence regarding COVID 19 vaccines and their efficacy in controlling the transmission of the virus in comparison to other measures such as testing. The expert evidence relied on in this decision demonstrated that vaccination is the most effective strategy to reduce transmission in workplaces. Evidence such as this will likely continue to be relied upon to justify mandatory vaccination policies.