In an effort to curb the spread of COVID-19 in the workplace, and in accordance with public health guidance, many Ontario employers have implemented vaccination policies over the past year.
Given the recent, unprecedented spread of COVID-19 due to the arrival of the Omicron variant, vaccination policies and their ultimate enforceability will be forefront in the minds of many employers and employees in the coming months.
We recently wrote about three labour arbitration decisions that addressed the enforceability of mandatory vaccination policies for unionized employees. Two of these decisions upheld the vaccination policies at issue, and one found the vaccination policy to be unenforceable in the context of the relevant facts.
Since our last update, there has been another Ontario labour arbitration decision upholding a mandatory vaccination policy. In Bunge Hamilton Canada, Hamilton Ontario v United Food and Commercial Workers Canada, Local 175, Arbitrator Herman considered a mandatory vaccination policy, which included the requirement that unvaccinated employees be placed on unpaid leaves of absence, and found that the policy was reasonable, dismissing the Union's grievance.
The employer, Bunge Hamilton, operates an oilseed processing facility in Hamilton, Ontario with integrated operations across two properties, across from each other, on the north and south side of Burlington Street. Employees work on either the north or south property, but may be re-assigned to jobs on either property. Furthermore, all training of new and current employees takes place on the north property and can span the course of several months.
The north property is located on land leased from the Hamilton Oshawa Port Authority. On November 1, 2021, the Port Authority issued a vaccination policy requiring that all employees working on land owned by the Port Authority had to be fully vaccinated by January 24, 2022, to comply with mandatory federal vaccination requirements from Transport Canada. Employees who could not attest to being fully vaccinated by the deadline would not be permitted on Port Authority property.
On November 9, 2021, Bunge Hamilton issued a vaccination policy to comply with the requirements of the Port Authority's vaccination policy. Under Bunge Hamilton's vaccination policy, any employee who was not fully vaccinated by January 24, 2022, would not be allowed on site and would be placed on an unpaid leave.
The Union filed a policy grievance alleging that Bunge Hamilton's policy was unreasonable and violated employee privacy rights.
In his decision dismissing the Union's grievance, Arbitrator Herman found that Bunge Hamilton's vaccination policy was reasonable, did not violate employee privacy rights and was a reasonable exercise of management's right to issue workplace policies. In reaching his decision, Arbitrator Herman made number of factual findings:
- If Bunge Hamilton had not implemented the mandatory vaccination policy, it would not have been able to properly operate its business as the company is bound by its lease obligations to the Port Authority which required such a policy.
- Unvaccinated employees create known public safety and health risks for both the vaccinated and the unvaccinated who come into contact with them.
- Unvaccinated employees are unable to work remotely.
- The vaccination policy does not provide for automatic disciplinary suspension or termination, it only states that unvaccinated employees will be placed on an unpaid leave.
- A vaccination policy allowing for testing as an alternative to mandatory vaccination would not have been reasonable as it would have resulted in a breach of the Port Authority's requirements.
With respect to the concerns surrounding privacy rights, Arbitrator Herman found that any privacy rights infringed upon as a result of the vaccination policy were considerably outweighed by the minimal intrusion on such rights and the "enormous public health and safety interests at issue."
Arbitrator Herman rejected the Union's argument that since there had been no cases of transmission in the workplace there was no need for the new vaccine policy.
Arbitrator Herman also distinguished his decision from Arbitrator Stout's decision in Electrical Safety Authority v Power Workers Union, discussed in Challenging Mandatory Vaccination Policies in Ontario: Arbitrators Take a First Look and Reach Differing Conclusions in which a mandatory vaccination policy was found to be unenforceable. In doing so, Arbitrator Herman found that the context in the matter before him was "meaningfully different" compared to the facts in Electrical Safety Authority, which included that many of the employees affected were able to effectively work remotely and in compliance with third-party vaccination policies without causing significant impediments to the employer's operations.
The Bunge Hamilton decision highlights, once again, the central importance of context when determining the enforceability and reasonableness of a vaccination policy. Employers must consider their vaccination policies in the context of their workplace, the collective agreement, legislation and governmental guidance, as well as any contractual obligations owed to third-parties. In this case, the fact that the Port Authority made the policy a condition of entry to the leased property where Bunge Hamilton's employees worked was critical to the Arbitrator's finding.
While the Bunge Hamilton decision is highly fact-specific, it is a further indication of arbitrators' willingness to uphold mandatory vaccination policies in certain circumstances. Employers (especially in the unionized space) seeking to implement mandatory vaccination policies are more likely to have such policies upheld if they can demonstrate why the policy in question is necessary and reasonable, and why a less onerous policy will not suffice.
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