Ontario Arbitrators Uphold Vaccination Policies

Over the past few months, more Ontario arbitrators have released decisions on COVID-19 vaccination policies implemented by employers. This article will provide an update on the new decisions and how they compare to prior decisions.

Teamsters Local Union 847 and Maple Leaf Sports and Entertainment

On January 12, 2022, an Ontario arbitrator found that an Employer’s act of placing an Employee on unpaid leave for failing to disclose his vaccination status did not violate its collective agreement or any other law. The Employee in this case worked at Scotiabank Arena in Toronto, and had refused to disclose his vaccine status in response to the Employer’s mandatory vaccination policy.

The Employer’s vaccination policy required employees to be vaccinated by October 31, 2021, failing which they would be placed on an indefinite unpaid leave and could be subject to termination. Employees were required to disclose their status through a secure portal operated by a third party, and only a limited number of employees would have access to that information on a need to know basis. The information would be deleted when it was no longer needed, and all information would be kept confidential. The Employee alleged that in placing him on unpaid leave for failing to disclose his vaccination status, the Employer violated the collective agreement and any relevant legislation.

The Arbitrator found there to be no violation of the collective agreement or any legislation. He noted that the law supports the use of workplace vaccination mandates in order to reduce the spread of COVID-19, and that the authority to impose such mandates arises both from management’s right to impose reasonable rules and regulations and from the duty of employers to take necessary precautions to protect workers. The Arbitrator also found that employers are entitled to seek disclosure of employees’ vaccination status in the workplace, particularly if the information is secured and protected from unnecessary disclosure, and that he was satisfied that the Employer’s procedures in this case were adequate. Furthermore, the Arbitrator dismissed the Union’s argument that the Employee’s collective agreement rights were being denied, as the Employer established that vaccination against COVID-19 was necessary for employment, and that this approach was reasonable in order to fulfill its duty to protect its workers. Therefore, there was no violation of the collective agreement or any legislation.

Bunge Hamilton Canada and UFCW, Local 175

On January 4, 2022, an Ontario arbitrator upheld another employer’s COVID-19 vaccination policy in the decision Bunge Hamilton Canada and UFCW, Local 175. The Employer in this decision, Bunge Hamilton Canada (“Bunge”), operates an oilseed Crush/Refine processing facility in Hamilton, Ontario. Bunge’s operations are split between two properties located across the street from one another, one of which it owns and the other it leases from the Hamilton-Oshawa Port Authority (“HOPA”).

In the fall of 2021, HOPA issued a vaccine policy requiring all employees of companies located on its properties to be vaccinated by January 24, 2022, or they would be barred from HOPA property until they provide proof of full vaccination. The policy stated that exemptions would be granted for valid medical reasons. As per its lease agreement with HOPA, Bunge was required to follow all of HOPA’s policies and procedures. Consequently, on November 9, 2021, Bunge amended its COVID-19 vaccination policy to reflect HOPA’s policy and required its employees to be fully vaccinated (having completed the required regime for a COVID-19 vaccine and having waited 14 days following the final dose) by January 24, 2022. Bunge’s policy also required employees to provide proof of vaccination to the Facility Manager or Human Resources representative supporting Bunge’s Hamilton facilities. Employees who did not provide proof of their vaccination status by January 24, 2022 would not be allowed on either of Bunge’s Hamilton properties, while employees who were in the process of becoming fully vaccinated (e.g. waiting to receive their second dose) would be placed on unpaid leave until they provided proof of full vaccination. Exemptions would only be made for valid medical or religious reasons. After January 24, 2022, all new hires would be required to be fully vaccinated as well.

The Arbitrator found it was reasonable for Bunge to apply HOPA’s policy to all employees at both Hamilton properties, as having different vaccination policies for each location would have caused significant challenges to Bunge’s operations, and it was not possible to place vaccinated employees at one location and unvaccinated employees at the other without violating the collective agreement.

The Arbitrator also found the requirement to disclose one’s vaccination status to be reasonable, and any intrusion on an individual’s privacy rights was outweighed by the public health and safety interests at stake.

The Arbitrator went on to consider the requirement to be fully vaccinated by January 24, 2022 or be put on unpaid leave. The Arbitrator noted that Bunge’s vaccination policy did not terminate unvaccinated employees, only that a final determination would be made, which could include discipline or termination in the future. Further, the Arbitrator reiterated that if Bunge had not implemented HOPA’s requirements, it would have been unable to properly operate its business out of both properties. Given these circumstances, and the public safety risk that unvaccinated individuals represented, the Arbitrator found the requirement to be fully vaccinated by January 24, 2022 to be reasonable.

The Arbitrator concluded that Bunge’s updated vaccination policy was reasonable in the circumstances and was a reasonable exercise of management’s right to issue workplace policies, and dismissed the Union’s grievance.

Canada Post and CUPW

On November 30, 2021, an Ontario arbitrator did not issue an injunction against the Employer to cease and desist from implementing its vaccine policy pending. The policy, which was announced on November 26, 2021, required all employees to attest to having been fully or partially vaccinated failing which, unless unable to be vaccinated, employees would be restricted from attending at work, including remotely, and placed on leave without pay. In dismissing the application, the Arbitrator noted that any harm caused by implementing the policy could be remedied if the policy was later found to be unreasonable, and that the policy was necessary to maintain the safety of the workplace.

How these Decisions Stand in Relation to Prior COVID-19 Vaccination Policy Awards

A common theme amongst the above decisions is the reasonableness of placing employees who are not fully vaccinated on unpaid leaves of absence. This issue has been addressed in prior vaccine policy decisions. Specifically, a policy that placed employees on unpaid leave who were unvaccinated or refused to disclose their vaccination status and did not agree to undergo rapid testing was upheld in Ontario Power Generation and PWU (“OPG”). In OPG, the Employer’s policy involved placing employees on a six week unpaid leave of absence, and involved terminating employees if they refused to partake in testing following the six-week leave. The Arbitrator in OPG found the requirement to be reasonable given that testing was minimally intrusive and would help employees demonstrate that they were not a risk to other employees. That same Arbitrator upheld a similar consequence for non-compliance with a vaccination policy in the Bruce Power LP and PWU award. Comparing these prior awards to the present cases, in MLSE, the Arbitrator found the Employer placing employees on unpaid leave if they did not disclose their vaccination status to not violate the collective agreement between the parties, nor any relevant laws. In Bunge Hamilton Canada, the Arbitrator found the unpaid leave consequence in Bunge’s policy to be reasonable, in part because of the safety risk that unvaccinated persons posed, but also that the unpaid leave had no determinative effect on an employee’s employment, and it was noted that the Employer needed to comply with its landlord’s vaccination policy in order to run its business. Finally, in Canada Post, the Arbitrator refused to issue a cease and desist order in relation to an employer’s vaccine policy that placed unvaccinated employees on unpaid leave, citing that the harm caused by implementing the policy could be remedied if the policy was later found to be unreasonable, and that the policy was necessary to maintain the safety of the workplace.

However, some vaccination policies have been held to be unreasonable in other circumstances. The policy in Electrical Safety Authority and PWU (“ESA”) is one example. In that case, the policy required all employees to provide proof of full vaccination by December 22, 2021, or face potential disciplinary measures up to and including termination. If employees did not meet the requirements of the vaccination policy, the Employer also had the discretion to place them on unpaid leave. The Arbitrator found this policy to be unreasonable, given that the Employer had previously permitted regular COVID-19 testing as an alternative to vaccination and had not provided any evidence of difficulties in protecting the workplace using this approach. The Arbitrator also noted that there was no evidence of any significant change in circumstances that warranted a change in policy. The Arbitrator thus held that the policy was unreasonable in the circumstances.

While only a limited number of decisions on COVID-19 vaccination policies have been issued, these awards appear to be further examples of the case-by-case basis on which adjudicators assess these policies. COVID-19 vaccination policies vary amongst employers and reflect the workplace circumstances that each employer faces, and will continue to be challenged on both general grounds and grounds relating to specific workplaces. We expect that further decisions on COVID-19 vaccination policies will be released in the coming weeks and months and will provide additional guidance and insight for adjudicators and employers to consider.

If you have any questions about this topic, other COVID-19 related questions, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer or refer to the Firm’s other COVID-19 website resources.

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