Taking the good with the bad, Vol. 2: An overview of arbitral decisions on COVID-19 ‎‎vaccination policies in unionized settings ‎issued in late 2021 and early 2022‎

Introduction

In accordance with public health guidance, many Ontario employers have implemented mandatory vaccination policies over the past year. Recently, we discussed the enforceability of COVID-19 vaccination policies for unionized employees as determined in three Ontario labour arbitration decisions. Two of these decisions upheld the vaccination policies at issue, and one found the vaccination policy to be unenforceable in light of its relevant facts.  Since our last update, there have been three additional Ontario labour arbitration decisions that support the implementation and/or enforceability of COVID-19 vaccination policies in a unionized setting.

Bunge Hamilton Canada, Hamilton, Ontario and UFCW, Local 175 (“Bunge”)

In this decision, the employer (“Bunge”) operated an oilseed processing facility in Hamilton, Ontario. Bunge’s operations were split between two properties located across the street from one another, one of which it owned and the other it leased from the Hamilton-Oshawa Port Authority (“HOPA”). In the fall of 2021, HOPA issued a mandatory vaccination policy requiring all employees of companies located on its properties to be vaccinated by January 24, 2022. Employees who could not provide proof of full vaccination by this deadline were barred from entering HOPA property, with exceptions provided for those who were medically exempt. Bunge was required to follow all of HOPA’s policies and procedures pursuant to its lease agreement with HOPA. Accordingly, Bunge amended its COVID-19 vaccination policy to reflect HOPA’s policy. Under Bunge’s amended COVID-19 vaccination policy, employees who did not provide proof of their vaccination status by January 24, 2022 would not be permitted on either of Bunge’s properties and would be placed on unpaid leave until they provided proof of full vaccination. Exemptions would only be made for valid medical or religious reasons.

The United Food and Commercial Workers Canada, Local 175 (“UFCW”) filed a policy grievance alleging that Bunge’s policy was unreasonable and violated employee privacy rights.

Arbitrator Herman dismissed the UFCW’s grievance, finding that:‎‎

1. Contrary to what was argued by UFWC, it would have been unreasonable for Bunge to apply ‎HOPA’s policy to only one of its properties. Requiring Bunge to implement different vaccination ‎policies for each location would cause significant disruption to its business operations. In this ‎case, it was also impossible to place vaccinated employees at one location and unvaccinated ‎employees at the other without violating the seniority and job posting provisions of the collective ‎agreement.
   
   
2. Any intrusion on an individual’s privacy rights that could result from disclosing one’s ‎vaccination status was outweighed by the public health and safety interests at stake. The ‎employees in this case were also unable to work remotely and could not be accommodated. ‎‎
   
   
3. Bunge’s vaccination policy did not provide for automatic disciplinary suspension or ‎termination for unvaccinated employees. It only stated that unvaccinated employees would be ‎placed on an unpaid leave of absence pending a final determination of their employment status, ‎which may include discipline or termination (emphasis added).
   
   
4. It was unreasonable for Bunge to implement a vaccination policy that allowed for testing as ‎an alternative to mandatory vaccination because such a policy would result in a breach of ‎HOPA’s mandatory vaccination requirements.
   
   
5. Unlike in Electrical Safety Authority v Power Workers Union, where a mandatory vaccination ‎policy was found to be unenforceable (see our earlier discussion here), the prohibitions imposed ‎by HOPA against Bunge’s unvaccinated employees coming on its properties would have created ‎significant operational problems for Bunge.

For these reasons, Arbitrator Herman concluded that Bunge’s amended COVID-19 vaccination policy was a reasonable exercise of management’s rights.

Canada Post Corporation and Canadian Union of Postal Workers (“Canada Post”)

In Canada Post, the Canadian Union of Postal Workers (“CUPW”) filed a cease and desist application against Canada Post, attempting to halt the implementation of a mandatory COVID-19 vaccination policy that did not include a testing component. Canada Post’s COVID-19 vaccination policy required all employees to attest to having been fully or partially vaccinated, failing which employees would be restricted from attending at work, including remotely, and would be placed on unpaid leave. Exception would have been made only if the employee was unable to be vaccinated.

Arbitrator Burkett dismissed the Union’s application and refused to grant injunctive relief. Notably, Arbitrator Burkett defined the harm being alleged by CUPW not as a “coerced invasion of body privacy,” but as a harm that could be remedied by means of compensation or the restoration of seniority in the case that Canada Post’s policy was later found to be unreasonable. Arbitrator Burkett also rejected the Union’s argument that rapid antigen testing was a suitable alternative to mandatory vaccination because the evidence was clear that mandatory vaccination was the “most efficacious means” to accomplish necessary health and safety objectives. Thus, granting a cease and desist order would result in an added risk to employees and the public, however small, of severe illness.

Hydro One Inc. and Power Workers’ Union (“Hydro One”)

Hydro One’s COVID-19 vaccination policy required all employees to provide Hydro One with proof of vaccination status or confirmation of a valid exemption, failing which employees would be required to undergo regular COVID-19 rapid antigen testing prior to reporting to work effective November 8, 2021. The grievors, for various reasons, all failed to comply with the requirements of Hydro One’s policy by the deadline provided, and were subsequently placed on an unpaid leave of absence.

The Power Workers’ Union (“PWU”) took the position that the grievors had legitimate concerns about Hydro One’s mandatory disclosure policy, and that Hydro One’s failure to address these concerns in a timely manner resulted in the grievors being unable to comply with the policy’s requirements in time. The PWU sought payment for each of the grievors for the period of time that they were on a leave of unpaid absence. Arbitrator Stout dismissed the grievances, finding that:‎‎‎‎

1. ‎ The grievors all had reasonable advance notice about the requirements of Hydro One’s policy. ‎The implementation of mandatory COVID-19 vaccination policies by employers was also ‎generally known to the public, and the grievors waited until the “very last minute” to raise their ‎concerns.
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2. Hydro One had addressed the grievors’ concerns in good faith and within a reasonable time ‎period by providing fair and adequate responses.
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3. Preventing employees from attending at work if they do not provide proof of vaccination or a ‎negative COVID-19 rapid antigen test is a reasonable compromise that respects employee rights ‎and balances various important interests.
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4. Accommodating the grievors with remote work is not necessary where a reasonable ‎alternative (e.g., rapid antigen testing) has already been provided to those employees who refuse ‎to disclose their vaccination status. In any event, most of the grievors were unable to perform ‎their work remotely. 

Conclusion

The above decisions underscore the reasonableness of placing employees who are not fully vaccinated on unpaid leaves of absence. These decisions also offer support for the imposition of truly mandatory COVID-19 vaccination policies (as opposed to vaccinate-or-test policies).

In Bunge, the arbitrator found unpaid leaves to be reasonable, in part because the unpaid leave had no determinative effect on an employee’s employment status. Similarly, the decisions in Canada Post and Hydro One emphasize the remedial or compensatory nature of the harm caused by placing non-compliant employees on an unpaid leave. Where consequences of non-compliance do not result in an automatic disciplinary suspension or termination of employment, mandatory vaccination policies are more likely to be enforced. The decision in Bunge also supports the proposition that employee privacy rights are not absolute and must be balanced against other legitimate interests.

Nevertheless, the central importance of context cannot be understated when assessing the enforceability and reasonableness of a COVID-19 vaccination policy. Ultimately, COVID-19 vaccination policies must reflect the unique workplace circumstances of each employer. We expect that future decisions on COVID-19 vaccination policies will provide additional guidance and insight for employers to consider.

For further information, please consult our ‎Coronavirus Resource ‎Centre or feel free to ‎contact any member of our DLA Piper Canadian Employment and ‎Labour Law Service ‎Group, who will ‎‎ensure that you are acting upon the most up-to-date information.