In Bunge Hamilton Canada, Hamilton, Ontario v. United Food and Commercial Workers Canada, Local 175,1 the arbitrator found that a mandatory vaccination policy requiring unvaccinated unionized employees to be placed on unpaid leaves of absence pending a final determination of their employment status was reasonable.
Bunge Hamilton Canada (the "Employer") operated two oilseed processing facilities that were located across the street from one another. The north location was leased from the federally regulated Port Authority, while the south location was wholly owned by the Employer.
In November 2021, pursuant to Transport Canada directives, the Port Authority issued a letter to its tenants and contractors, requiring their respective employees operating on its property to be fully vaccinated against COVID-19 by January 24, 2022, subject to medical exemptions. Although this directive only applied to the north location, the Employer introduced a mandatory COVID-19 vaccination policy for its employees at both locations (the "Policy"). Pursuant to the Policy, subject to medical and religious exemptions, any employee who was not fully vaccinated and/or did not intend to provide proof of fully vaccinated status by January 24, 2022 would not be able to access the site and would be placed on an unpaid leave, pending a final determination on their employment status (up to and including termination).
The United Food and Commercial Workers Canada, Local 175 (the "Union") filed a grievance, alleging that the Policy was unreasonable and in violation of the employees' personal privacy rights.
The arbitrator dismissed the Union's grievance and found that the Policy was reasonable. The following factors supported the arbitrator's decision:
- Integration of locations. The operations at the north and south locations were integrated; for example, employee training took place in the north location, and employees were regularly assigned to either location as necessary, including to work overtime. Treating the two facilities as distinct would preclude the interaction of employees between the locations and impede the Employer's business.
- Collective agreement terms. If unvaccinated employees were all moved to the south location, vaccinated employees would consequently need to be transferred to the north location. Transferring jobs or positions in this manner would potentially breach the transfer, seniority, and job posting provisions of the collective agreement.
- No automatic discipline. The Policy stated that discipline or termination for non-compliance were possibilities, rather than a predetermined outcome. In particular, any discipline meted out to non-compliant employees could be met with a grievance, resulting in an opportunity to consider whether the Employer had just cause for such discipline.
- Business Necessity. The Port Authority's policy required the Employer to ensure its employees working at the north location were fully vaccinated. It was reasonable for the Policy to be made applicable to all its employees, regardless of the location they customarily worked at because had it not implemented the Port Authority's requirements through its own policy it would not be able to properly operate its business at both locations.
- No testing alternative. Using testing as an alternative to the mandatory vaccination requirement would not comply with the Port Authority's policy, meaning that exercising this option would still jeopardize the Employer's lease obligations.
- No remote working option. The nature of the Employer's operations required employees to be physically on site, such that they could not work remotely.
- Health and safety. The public health and safety interests at issue in the COVID-19 pandemic were significant, and ultimately outweighed the Policy's "minimal intrusion" on privacy rights. In particular, the lack of recent confirmed COVID-19 cases at the workplace did not render unreasonable what was otherwise a reasonable policy because the nature of COVID-19, the risks of exposure and the potential significant negative consequences of infection, particularly for unvaccinated persons.
Significance of the Decision and Takeaways for Unionized Employers
The Bunge decision provides further support for the reasonableness of mandatory vaccination policies in the unionized context, following on the heels of recent decisions in United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. and Ontario Power Generation v. The Power Workers Unionthat also upheld mandatory vaccination policies in unionized settings. However, employers should remain mindful that the reasonableness of a mandatory vaccination policy depends on the unique circumstances of a given employer and its workforce. The Bunge decision involved a lease agreement between the Employer and the Port Authority, the Port Authority vaccination directive, specific terms in the collective agreement, and integrated on-site operations. These facts allowed the arbitrator to distinguish another recent decision, Electrical Safety Authority v. Power Workers' Union, where an employer's mandatory vaccination policy was found to be premature and unreasonable. In that case, many employees worked remotely and could continue working remotely, the prohibitions by some third-party site owners did not at that time create significant problems for the operation of the employer's business, and testing was considered to be a valid alternative.
Employers should also be wary of including statements in their mandatory vaccination policies that termination or other specific discipline will necessarily be the consequence of non-compliance lest it be challenged to be unreasonable on that basis. While such policies should alert employees that termination or discipline may be one of the potential consequences of non-compliance, every instance of non-compliance should be evaluated in its own unique circumstances.
Finally, no published arbitral or judicial decision that we are aware of has yet considered a mandatory vaccination policy in the non-union context
1. Bunge Hamilton Canada, Hamilton, Ontario v. United Food and Commercial Workers Canada, Local 175 ("Bunge").
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