This article was first published on the Littler® Insight Blog (Link here) and is reprinted here with permission.
In Unifor Local 973 v Coca-Cola Canada Bottling Limited, 2022 CanLII 20322, Arbitrator Mark Wright made another contribution to the “weight of authority” in Ontario labour arbitration awards pertaining to mandatory COVID-19 vaccination policies in unionized workplaces. As has been the trend, the arbitrator decided that despite the impact of such a policy on employees’ right to privacy and bodily integrity, the employer’s policy is reasonable in the context of the extraordinary health challenge of the global COVID-19 pandemic, and the employer’s obligation under s. 25(2)(h) of the Occupational Health and Safety Act (OHSA) to “take every precaution reasonable in the circumstances for the protection of a worker.”
The employer operates a large bottling facility in Brampton, Ontario with a bargaining unit of 700 employees represented by Unifor Local 973 (Union). The employees must attend the workplace to perform their work and most work in close quarters with other employees. Employees who are drivers interact in close contact with customers and dock workers. Most customers have their own vaccination policies, and many require anyone attending their premises to be vaccinated.
On October 26, 2021, the employer announced its vaccination policy, which provides that all existing union and non-union employees had to be fully vaccinated with two doses of an approved vaccine by January 1, 2022, or face workplace consequences that might include disciplinary consequences, including termination. The policy provides that employees who can establish that they are unable to take any of the COVID-19 vaccines for a reason protected by the Ontario Human Rights Code (HRC), are entitled to seek accommodation. As of October 26, 2021, all new hires were also required to be fully vaccinated.
Prior to the policy’s publication, employees were asked to volunteer information about their vaccination status. Those who indicated they were fully vaccinated were required to provide proof by November 15, 2021. Those who did not provide proof were assumed to be unvaccinated and directed to participate in an educational program about COVID-19 vaccination. By the time the policy was published, 75% of the employer’s workforce indicated they were fully vaccinated.
In addition to the policy, other measures were implemented at the Brampton facility to reduce COVID transmission, e.g., screening, capacity limits, disinfectant wipes and masks provided to employees, installation of physical barriers where physical distancing was not possible, COVID-19 posters, etc.
On December 7, 2021, the employer advised all employees that:
On January 12, 2022, the employer advised all employees that effective January 31, 2022, all unvaccinated employees would be placed on indefinite leave. Although this did not apply initially to partially vaccinated employees, they were subsequently put on indefinite leave if they did not become fully vaccinated.
By the end of February 2022, COVID-19 had the following significant impact on the employer and its employees:
Since the policy was implemented, 48 employees at the Brampton facility were placed on unpaid leave due to non-compliance. Of those employees, 11 did not obtain a second dose of the vaccine. No bargaining unit employees were disciplined or terminated for non-compliance with the policy. As of the date of the arbitration hearing, the full vaccination rate of the employer’s employees increased to 96%.
The Union filed a policy grievance on November 18, 2021, alleging that the policy was unreasonable and in violation of the collective agreement (CA) on the following grounds:
Arbitrator Wright decided:
Upon discussing the reasonableness of the policy, Arbitrator Wright noted that it:
. . . establishes a reasonable balance between an employee’s interest to privacy and bodily integrity, and the Employer’s interest in maintaining the health and safety of the workplace.
. . . context is important when assessing the reasonableness of a workplace rule or policy that may have workplace consequences for individual employees. The general context is known to everyone. The Policy is a response to a global health pandemic that has so far claimed 6 million lives worldwide. It makes mandatory the use of vaccines, that have proven to be safe and effective at combatting not only the transmission of the virus, but also at providing significantly greater protection from serious illness, hospitalization, and death for those individuals who are fully vaccinated. There is no question that it is extraordinary for an employer to enact a workplace rule or policy that impacts an employee’s right to privacy and bodily integrity, but there can be no dispute that the global COVID-19 pandemic is an extraordinary health challenge. Not only are employers obliged to ensure that the health and safety of an employee is always protected, under s 25(2)(h) of the Occupational Health and Safety Act, employers are statutorily required to “take every precaution reasonable in the circumstances for the protection of a worker.”
Recognizing that in making its “less intrusive means” argument, the Union relied on the Arbitrator Stout’s decision in Electrical Safety Authority v Power Workers’ Union (ESA) that a mandatory vaccination policy was unreasonable (discussed here). Arbitrator Wright held that ESA was distinguishable for the following reasons:
Arbitrator Wright also responded to the Union’s argument that, “nobody gives up their regular salary unless they have a strongly held view about COVID-19 vaccines that may reflect political perspectives or lifestyle choices.” Although he agreed this was true, this argument did not deter him from his view that the policy was reasonable. Noting the availability of accommodation for reasons protected under the HRC, Arbitrator Wright stated, “Short of that…an employee’s personal beliefs cannot override the Employer’s interest in doing everything possible to maintain the health and safety of the workplace.”
Furthermore, although Arbitrator Wright acknowledged that the choice between livelihood and bodily integrity/autonomy “is an exceptionally hard choice,” he concluded that notwithstanding, “the Employer’s interest in this case in maintaining the health and safety of the workplace – in taking ‘every precaution reasonable for the protection of a worker’ – justifies the Policy…”
Finally, noting that the policy provides that discipline or termination is possible but not inevitable upon an employee’s non-compliance, Arbitrator Wright stated that because such an outcome could be challenged with an individual grievance requiring the employer to establish just cause for its decision, it was reasonable for the policy to contemplate the possibility of these consequences.
Bottom Line for Employers
We have reported on a number of arbitration awards in Ontario pertaining to mandatory vaccination policies in unionized workplaces in the extraordinary context of the COVID-19 global pandemic. In each of these cases, the arbitrator considered the unique context in which the policy was implemented. Arbitrator Wright’s decision in Coca-Cola Bottling is yet another example of this approach. In addition, it is consistent with the “weight of authority” on the subject, which provides that as long as such policies comply with the HRC, they will be considered reasonable and enforceable, and viewed as satisfying an employer’s obligation under the OHSA to take every reasonable precaution to protect the health and safety of its employees. Furthermore, the Coca-Cola Bottling decision reinforces that apart from an employee’s right to be accommodated under the HRC, their personal beliefs cannot override an employer’s obligation to maintain the health and safety of the workplace. Finally, it supports the reasonableness of a mandatory COVID-19 vaccination policy contemplating the possibility of discipline or termination upon an employee’s non-compliance.
We encourage employers considering the implementation of mandatory vaccination policies to seek the advice of experienced labour and employment counsel.
© 2022 Littler Mendelson. All Rights Reserved.
LITTLER MENDELSON® is a registered trademark of Littler Mendelson, P.C.
In Travelers Insurance Company of Canada v Greyhound Canada Transportation, 2022 QCCQ 4746, Justice Davignon declined jurisdiction over part of a dispute – the Plaintiffs sued the Defendants for recovery of damages as...By Eric Bédard
Introduction and Unanswered Questions Airplane cargo loaders and ramp supervisors are now able to bring a claim for overtime pay in court, rather than being forced into arbitration. In...By Brittany Munn
This aritcle first appeared on the Securities Arbitration Alert (SAA) Blog, here. As we confidently predicted, the Democrats have reintroduced several bills to curb use of mandatory predispute arbitration agreements...By George Friedman