Ontario, Canada: Another Arbitration Decision Upholds Mandatory COVID-19 Vaccination Policy

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.”

Background

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:

  • Effective January 3, 2022, all employees who were not fully vaccinated by January 1, 2022, would be required to wear face shields over their masks when on site or in the field; and
  • Effective January 17, 2022, unvaccinated employees would have to submit to a mandatory rapid testing program on their own time but at the employer’s expense, and ongoing failure to comply with the policy, “will have consequences such as being subject to additional protocols and rules, including Leave Without Pay, and the possibility of significant discipline up to and including termination.”

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:

  • Two deaths;
  • 870 employees tested positive at the Brampton facility;
  • 409 employees (approximately 13% of the workforce) tested positive in January 2022 (significantly more than in any other month);
  • Full closure of two of the employer’s facilities and partial closure of two of its other facilities for periods of time due to outbreaks;
  • Six-fold increase in employee hospitalizations from 2020 to 2021.

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%. 

Policy Grievance

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:

  • Less-intrusive means such as enhanced personal protective equipment and rapid antigen testing are sufficient to keep employees safe at work and to enable the employer to meet its statutory obligation under the OHSA;
  • Consideration should be given to the fact that, “an employee’s decision to not get vaccinated is almost always based on a strongly held personal belief, that may reflect a political perspective or lifestyle choice, because no one gives up a regular salary for no reason”; and
  • The policy puts employees in an untenable situation because it required them “to choose between their livelihood or their bodily integrity/autonomy.”

Decision

Arbitrator Wright decided:

  • The policy is reasonable and enforceable and not in violation of the CA;
  • The placement of non-compliant employees on a leave of absence without pay is reasonable in the circumstances and not in breach of the CA;
  • To ensure the employees have an unquestionable opportunity to bring themselves into compliance with the policy, no discipline should be issued for failing to become vaccinated before April 4, 2022; and
  • To the extent that discipline is issued, each case will be assessed and judged on its own merits as against a “just cause” standard. 

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:

  1. In ESA, a significant majority of the employees were working remotely and had a right to continue to do so under their CA; however, in the present case, none of the employees could work remotely and the majority of their work was conducted in close contact with other employees, customers, or members of the public;
  2. In ESA, Arbitrator Stout noted that the Electrical Safety Authority did not lead any evidence that a combined vaccination and testing regime could not keep the workplace safe; however, in the present case, the evidence suggested that a combined vaccination and testing regime failed to keep the workplace safe: 13% of the workforce (409 employees) tested positive in January of 2022 (the highest number of employees infected in any month of the pandemic), a month in which the employer first introduced enhanced PPE for unvaccinated employees, and then moved to a rapid testing regime for unvaccinated employees; and 
  3. Arbitrator Stout’s analysis predated the more contagious Omicron variant, for which rapid antigen tests are less sensitive and reliable than for the Delta variant.  Indeed, Arbitrator Stout acknowledged in ESA that that the pandemic is a dynamic situation and stated, “What may have been unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.”

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.

author

Rhonda B. Levy

As knowledge management counsel for Littler in Canada, Rhonda B. Levy is responsible for satisfying the firm's Canadian knowledge management needs, for monitoring legislative, regulatory and caselaw developments, and for drafting and editing publications. Prior to joining Littler, Rhonda was national knowledge management partner at a prominent Canadian law firm…

author

Barry Kuretzky

An acknowledged resource on Canadian employment law, Barry Kuretzky brings creative solutions to business-critical decisions. His distinctive legal knowledge and clarifying common sense guide clients across the employment spectrum, from hiring to termination. During a career spanning four decades, Barry has gained particular experience counseling clients in the labour relations…

Featured Arbitrators

ad
View all

Read these next

Category

Arbitration Conversation No. 77: Lawyer David Tenner, a Colorado Arbitrator, and Special Master

In this episode of the Arbitration Conversation, Amy interviews David Tenner, an arbitrator, a special master to area courts, and a trained mediator. He is a member of the commercial...

By David M. Tenner
Category

While the Ninth Circuit Added Clarity in Its Recent Uber Opinion, Legislative Challenges to Mandatory Arbitration May Be Ahead

This article first appeared on the Employment Class Action Blog, here. A U.S. Court of Appeals for the Ninth Circuit panel ruled that Uber Technologies drivers don’t fall within the...

By John Lewis
Category

New AAA Consumer Fee Schedule Addresses Mass Arbitration Costs

This article first appeared on Consumer Finance Monitor, here. A litigation phenomenon that has recently surged is the simultaneous filing of hundreds or even thousands of individual arbitration demands against...

By Mark Levin

Find an Arbitrator

X
X
X