The growing wave of Canadian employers enacting mandatory-vaccine policies has automakers, parts suppliers and dealers walking a fine line between protecting their staff and infringing on their rights.
“From social settings in New York to corporate settings in Toronto, we’re seeing mandatory vaccination regimes becoming more commonplace,” said Flavio Volpe, president of the Automotive Parts Manufacturers’ Association (APMA).
In August, big-name private employers such as Royal Bank of Canada, Rogers Communications Inc. and financial services company Sun Life said staff returning to offices must be fully vaccinated. The federal government and a series of provinces and municipalities set similar rules, with several jurisdictions taking the added step of establishing a vaccine passport for social activities such as eating at restaurants or attending concerts.
For automakers, the legal obstacles to putting mandatory-vaccine policies in place are essentially the same as for other employers, Volpe said, but the requirements for staff to be on-site are often greater.
“There are duties within the industry, disciplines within the industry, that can be done remotely, the pandemic has shown that,” Volpe said. “But making things cannot be done through Zoom.”
NO MANDATES YET
Automakers such as General Motors, Honda and Stellantis are watching the evolving policy situation closely. None are currently mandating Canadian staff be vaccinated, however. In statements, the three companies said they are encouraging employees to do so as soon as possible.
Jerry Dias, national president of Unifor, said the union is not asking for anything specific on vaccine policy from the Detroit Three automakers, which employ thousands of his members. But the companies are beginning to determine how they are going to proceed, Dias said.
The union would not object if those plans include requiring vaccination.
“We are fine with companies coming forward with mandatory-vaccination policies,” Dias said, adding that they would need to make the proper accommodations on human-rights grounds and for immunocompromised individuals.
Michael Sherrard, a founding partner at the Toronto-based labour law firm Sherrard Kuzz, also stressed the importance of employers building accommodations into their policies and providing adequate notice before the rules are enacted. If an employee is ultimately fired because of the policy and challenges the decision in court, employers would need to show that the mandatory approach is reasonable, Sherrard said.
“Can I also demonstrate to them that I gave everybody lots of assistance and advocacy around how to go and get [vaccinated]?” he said.
Employers should also ensure their policies include alternatives to getting vaccinated as well as exceptions for “somebody who had a human rights-based reason for not getting the mandatory vaccination,” Sherrard said.
Employers will be able to justify termination only if they lay the groundwork with an ironclad policy. With no such cases to weigh, however, “the jury is still out,” Sherrard said.
Allegations of wrongful dismissal or alleged violations of the human rights code are also slow to work their way through the court system. Sherrard does not expect a precedent to be set until next year. That means the auto industry will likely be wading through uncertainty on how the legal system will treat mandatory policies through the fall.
For its part, the APMA does not provide legal advice to members. Volpe said he is telling parts suppliers to consult internal and external counsel while encouraging them to stay up to date on the latest health and safety protocols.
‘PATHWAY TO NORMAL’
Dealers face another layer of complexity. Along with safeguarding staff, they must watch out for customer safety.
As vaccines and rapid-test kits have rolled out, the Canadian Automobile Dealers Association (CADA) has focused on helping dealers acquire rapid tests while also advocating for vaccination.