Ontario, Canada: Another Arbitrator Upholds a Mandatory COVID-19 Vaccination Policy

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In Bunge Hamilton Canada, Hamilton, Ontario v. United Food and Commercial Workers Canada, Local 175 (Bunge), Arbitrator Robert J. Herman dismissed a union grievance challenging the employer’s mandatory COVID-19 vaccination policy. The employer’s policy is subject to medical and religion/creed exemptions, and provides that non-compliant employees are to be put on unpaid leave pending a final determination of their employment status (up to and including termination of employment).  In its grievance, the union argued that the mandatory COVID-19 vaccination policy was an unreasonable exercise of management rights and infringed upon employees’ rights to keep their confidential medical information private by having to disclose their vaccination status.  The arbitrator disagreed with the union and found the employer’s vaccination policy reasonable. 

Background

The employer operates an oilseed processing facility in Hamilton, Ontario. The employer’s primary operations are at a north property located on land leased from Hamilton-Oshawa Port Authority (HOPA), which is federally regulated.  The employer’s secondary operations are located at a south property, which it owns.  The north property and south property are across the street from one another.  Employees are regularly scheduled to perform jobs at one property or the other, but they may be reassigned to jobs at either property as the employer sees fit. 

On June 22, 2021, the employer issued a COVID-19 Vaccination Policy (Old Vaccination Policy).  Its stated purpose was to verify vaccination rates at the employer’s facilities to help the company gauge the need for employee vaccination clinics, incentives for being vaccinated, the risk of facility closure, ability to meet customer demands, appropriate safety protocols for employees, and impacts on employee travel.  Disclosure of vaccination status was not required, and there was no adverse employment action if employees declined to disclose their status or were unvaccinated.  The union had an outstanding grievance challenging the Old Vaccination Policy, which it intended to withdraw.

On November 2, 2021, HOPA advised that pursuant to new Transport Canada requirements that employers in the federally-regulated air, rail, and marine transportation sectors establish mandatory vaccination policies, all employees of companies located at the port had to be fully vaccinated by January 24, 2022, and all employees of companies that are tenants of HOPA or HOPA contractors operating on HOPA properties had to formally attest to HOPA via a prescribed form submitted in secure digital format that they were fully vaccinated by January 24, 2022 (HOPA Vaccination Policy).  HOPA would make exceptions for those unable to be vaccinated based on a Certified Medical Contraindication.  Those who failed to comply would not be permitted on HOPA property until they could attest that were fully vaccinated.  False attestations related to vaccination status would be subject to a six-month trespass period from HOPA property.

The employer’s lease with HOPA requires the employer to follow all HOPA policies and procedures.On November 9, 2021, the employer issued an updated vaccination policy to meet the requirements set out in the HOPA Vaccination Policy (Updated Vaccination Policy).The Updated Vaccination Policy, which is subject to medical and religion/creed exemptions, requires employees to provide proof of fully vaccinated status to the Facility Manager or Human Resources representative by January 24, 2022, and to then fill out a HOPA attestation form that will be submitted to HOPA as proof of vaccination.Employees who are not fully vaccinated and/or do not intend to provide proof of fully vaccinated status by January 24, 2022, will not be allowed on the site and will be put on unpaid leave pending a final determination of their employment status (up to and including termination of employment).

Union’s Grievance

The Union filed a policy grievance regarding the Updated Vaccination Policy on November 10, 2021, alleging that:

  • The Updated Vaccination Policy is an unreasonable exercise of management rights because:
    • It requires employees to disclose their personal health information; and
    • It is unreasonable to place unvaccinated employees on unpaid leaves of absence, or to discipline or terminate them for a failure to become fully vaccinated.
  • The Updated Vaccine Policy infringes upon employees’ rights to keep their confidential medical information private through the requirement that employees disclose their vaccination status, in breach of the Personal Health Information Protection Act, 2004 (PHIPA), specifically section 19.
  • The HOPA Vaccination Policy applies only to the north property, as it is the only property leased from HOPA. The employer cannot justify applying the Updated Vaccination Policy to the south property on the basis that HOPA requires that it do so.
  • It is premature to impose a blanket requirement that employees be fully vaccinated as the actual numbers of unvaccinated employees is unknown and unpredictable, and there is no evidence of any transmission since the Old Vaccination Policy was introduced in June 2021.
  • The employer has not established that:
    • The potentially small number of unvaccinated employees could not be accommodated by scheduling them to work only on the south property, or by otherwise separating them from vaccinated employees wherever possible;
    • Its ability to operate the north and youth facilities would be seriously impaired without the Updated Vaccination Policy.
  • The employer has not justified the lack of alternative measures such as testing, instead of unpaid leaves of absence, discipline, and termination.

The Union requested a declaration that:

  • The Updated Vaccination Policy is an unreasonable exercise of management rights, which must be nullified; and
  • The employer is required to reinstitute the Old Vaccination Policy. 

Alternatively, the Union requested that:

  •  Employees not be required to disclose their vaccine status;
  • Mandatory testing be included as an option as part of the Updated Vaccination Policy; and
  • Unpaid leaves, suspensions, or terminations not be allowed as part of the Updated Vaccination Policy.

Decision  

For purposes of his decision, Arbitrator Richard E. Herman assumed that the HOPA Vaccination Policy does not apply to the south property and therefore it does not require the employer to apply it to employees who enter that property.  Arbitrator Herman noted, however, that the north property and south property are located directly across the street from one another, and they are operationally integrated.  He noted also that although employees are scheduled to perform jobs at one of the two locations, most of the training of new employees and existing employees takes place at the north property and often lasts from 8 to 12 weeks. 

In his decision, Arbitrator Herman noted that, “The continued presence of COVID-19 presents a serious risk and danger to the health and welfare of the public, to the economy and the education system, and to everyone’s ability to enjoy a full life.”  As well, he noted that the emergence of the Omicron variant may increase these challenges and expressed concern about the significant public safety and health risks that unvaccinated individuals create for those, both vaccinated and unvaccinated, exposed to them.  The union acknowledged that COVID-19 is a serious danger to the health and welfare of the employees and the public, but there was no evidence regarding the public health challenges presented by COVID-19 or the Omicron variant. Rather, it appears that Arbitrator Herman accepted these facts as a given, and it is clear that his conclusion that the vaccination policy is reasonable was based, at least in part, on these factors.

Reasonable for Updated Vaccination Policy to apply to all employees regardless work location

Arbitrator Herman concluded that it is reasonable for the Updated Vaccination Policy to apply to all employees regardless of their work location because the employer’s ability to conduct its business would be significantly disrupted if different vaccine policies applied to the two locations.  Arbitrator Herman noted that if the employer moved all unvaccinated employees to work exclusively at the south property:

  • The employer would be:
    • Unable to reassign employees between locations;
    • Required to incur additional operating costs; and
    • Required to establish a separate training infrastructure at the south property to train employees located there.
  • Vaccinated employees would have to be transferred to the north property because employee intermingling between sites would put all employees at greater risk of COVID-19 infection. 
  • The transfer of employees to either site to maintain the north property for vaccinated employees and the south property for unvaccinated employees would breach provisions in the collective agreement pertaining to job postings, transfers, and seniority rights. 
  • If south property unvaccinated employees entered the north property, this would be in breach of the HOPA Vaccination Policy. 
  • If the two facilities were treated as distinct and geographically separate:
    • Employee interaction between the sites would be precluded; and
    • The currently existing operational integration between the sites would be impeded.    

Requirement to disclose vaccination status is reasonable

Arbitrator Herman concluded that, “Any privacy rights in this context are considerably outweighed by the minimal intrusion on such rights and the enormous public health and safety interests at issue.”  For the following reasons, Arbitrator Herman decided that the requirement to disclose vaccination status is reasonable:

  • It is not clear that PHIPA would prevent the disclosure of vaccination status in the circumstances.  The Union referred specifically to section 19 of PHIPA, which addresses the withdrawal of consent to the disclosure or collection of personal health information, and not the initial disclosure of such information.  It is unclear how PHIPA would apply in the circumstances. 
  • The Updated Vaccination Policy was introduced because the HOPA Vaccination Policy requires company employees to attest to their vaccination status.  The employer is required to comply with the HOPA Vaccination Policy. 
  • “The intrusion upon an individual’s privacy with respect to personal health information is fairly minimal.”  Employees are being asked only to reveal their vaccination status and the Updated Vaccination Policy expressly warns not to disclose other medical information. 
  • Employees will be aware of which employees are vaccinated after January 24, 2022, since after that date only vaccinated employees will be allowed on the site. 
  • The Updated Vaccination Policy gives employees a reasonable period to attest to their vaccination status (November 10, 2021 until January 24, 2022).
  • The information is only disclosed to the Facility Manager and then to HOPA.  Attestation information will be stored in a secured and confidential manner.  It will only be disclosed where required by or permitted by law.  Moreover, it will be disclosed internally only on a “need to know” basis.    

The requirement to be fully vaccinated by January 24, 2002, or be put on leave is reasonable

Arbitrator Herman concluded that in view of the public safety and health risks that unvaccinated people create for both the vaccinated and unvaccinated, it is reasonable that the Updated Vaccination Policy provides that employees who are not fully vaccinated by January 24, 2022, will not be allowed on the site and will be put on unpaid leave pending a final determination of their employment status (up to and including termination of employment).  Arbitrator Herman noted that if the employer had not implemented the HOPA Vaccination Policy through its own Updated Vaccination Policy, it would not have been able to properly operate its business out of the north and south properties. 

As well, Arbitrator Herman rejected the Union’s argument that since there had been no workplace transmissions since the Old Vaccination Policy was implemented, there was no need for the Updated Vaccination Policy stating, “The lack of recent confirmed cases does not render unreasonable what is otherwise a reasonable policy.”

Arbitrator Herman also determined that the Updated Vaccination Policy is reasonable without a testing requirement or testing alternative.  He noted that the use of testing as an alternative to a mandatory vaccination requirement “would put the employer in breach of its lease obligations with HOPA, since it would then be barred from access to the north property.”  He stated as well that he had not been provided evidence that a testing alternative would sufficiently protect employees or others entering the properties. 

Finally, Arbitrator Herman addressed the ESA decision, which the parties referred to.  The arbitrator in ESA concluded that at the time it was not reasonable for a vaccination policy to place non-compliant employees on unpaid leave and make them possibly subject to discipline, up to and including discharge, although it might be reasonable for a vaccination policy to do so at some point in the future.  Arbitrator Herman stated that the ESA decision was distinguishable and “arose in a context meaningfully different than the present context.” He noted the following differences:

  • In ESA, the prohibitions by some third-party site owners against unvaccinated employees entering their properties had limited impact and did not create significant problems for the business’ operation;
  • In ESA, the arbitrator expressly noted that the continued failure to be vaccinated might result in consequences later, which might include being placed on unpaid leave.  In this case, however, it was not premature to require employees to be fully vaccinated to come on site;
  • In ESA, the arbitrator stated that the policy’s lack of a testing alternative made the policy unreasonable. In this case, however, a testing alternative without also putting employees on leave as of January 25, 2022, would:
    • Not meet the requirements of the HOPA Vaccination Policy;
    • Put the employer in breach of its lease with HOPA; and
    • Jeopardize the employer’s ability to function.   

Arbitrator Herman concluded that the Updated Vaccination Policy is a reasonable policy in the circumstances, and a reasonable exercise of management’s right to issue workplace policies. Accordingly, he dismissed the Union’s grievance.      

Bottom Line for Employers

We have reported on a number of arbitration awards in Ontario pertaining to mandatory COVID-19 vaccination or testing policies in the workplace.  In one case, a mandatory COVID-19 vaccination policy was upheld as reasonable.  In another case, such a policy was struck down as unreasonable.  In yet another case, an arbitrator upheld a policy that provides for a vaccinate-or-test alternative.  We now also have the Bunge decision, in which the arbitrator upheld a mandatory COVID-19 vaccination policy as reasonable.  In each of these cases, the arbitrator considered the unique context in which the policy was implemented.  Notably, the context in Bunge involved a mandatory vaccination policy that was introduced by the employer because it had to comply with its federally-regulated lessor’s vaccination policy, which the lessor introduced when Transport Canada required employers in the federally-regulated air, rail, and marine transportation sectors to do so.  Had the employer not done so, it would have been in breach of its lease and unable to operate its business. 

Employers will be encouraged that the arbitrator in Bunge stated, “Any privacy rights in this context are considerably outweighed by the minimal intrusion on such rights and the enormous public health and safety interests at issue.”  Similar statements were made by arbitrators in some of the other decisions we have reported on, suggesting that arbitrators in Ontario seem generally inclined to consider the implementation by employers of policies mandating vaccination against COVID-19 reasonable on the basis that the minimal intrusion on privacy rights is justified by the need to ensure public health and safety. Similarly, Arbitrator Herman appears to have taken as a given that COVID-19 poses a serious heath and safety risk and that evidence of COVID-19 cases in a workplace is not needed to establish that a mandatory vaccination policy is reasonable. This is a departure from the analysis in ESA in which the arbitrator indicated that evidence of COVID-19 in the workplace and that less intrusive means were ineffective was necessary.

We encourage employers considering the implementation of mandatory vaccination policies to seek the advice of experienced labour and employment counsel. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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