Focus Alert readers will recall that, as evidenced by the opposing conclusions reached in two recent arbitration decisions involving provincially-regulated employers, the determination of whether or not a mandatory COVID-19 vaccination policy is reasonable will be highly fact-specific and context-specific to an employer’s particular workplace and circumstances. In what appears to be one of the first decisions on the matter issued in relation to a provincially-regulated employer leasing land from a federally-regulated employer, however, an arbitrator has once again found a mandatory COVID-19 vaccination policy to be reasonable. Although the specific facts and context will still weigh heavily on that determination in each case, this decision will be of particular importance to those employers in the federally-regulated air, rail and marine transportation sectors who are subject to Transport Canada directions, as well as provincially-regulated employers who operate on lands controlled by federal jurisdiction organizations. The decision will also be helpful for any federally-regulated employer that implemented a vaccination policy in response to federal government directives, including the core and broader federal public service.
In Bunge Hamilton Canada, Hamilton, Ontario v. United Food and Commercial Workers Canada, Local 175, Arbitrator Robert Herman was tasked with deciding a policy grievance objecting to a mandatory COVID-19 vaccination policy instituted by Bunge Hamilton Canada, Hamilton, Ontario (the “Employer” or “Bunge”), a provincial jurisdiction employer.
By way of background, the Employer operates an oilseed crush/refine processing facility in Hamilton, Ontario. Its operations are divided between two separate properties which are located across the street from one another. More specifically, its primary operations are situated on its “North Property”, which is located on land leased from the Hamilton Oshawa Port Authority (“HOPA”) – a federally-regulated organization – while its secondary operations are situated on its “South Property”, which is located on land owned by Bunge. While employees are regularly scheduled to perform jobs on one property or the other, they can be reassigned to any jobs on either property at any time, in the Employer’s discretion.
In the context of the ongoing COVID-19 pandemic, on June 22, 2021, the Employer issued the “Bunge Canada COVID-19 Vaccination Policy” (the “First Policy”). Notably, the First Policy did not require employees to disclose their vaccination status, nor was any adverse employment action anticipated in the case of employees declining to disclose their vaccination status or declining to be vaccinated altogether. It was instead primarily intended to allow the Employer to collect information on a voluntary basis in an effort to engage in appropriate operational planning.
Subsequently, on November 2, 2021, the Employer received an email from the leasing administrator for HOPA advising it of a new HOPA “COVID-19 Vaccination Policy: HOPA Contractors and Port Tenants” (the “HOPA Policy”) issued pursuant to Transport Canada directions. In accordance with the HOPA Policy, all employees of companies located at the port are required to be fully vaccinated by January 24, 2022 unless they are exempt on the basis of a certified medical contraindication, and to attest to their vaccination status to HOPA. In the event of non-compliance, the HOPA Policy indicates that affected employees will not be permitted on HOPA property until such time as they are compliant.
In the present case, the Employer’s lease agreement explicitly required that they follow all HOPA policies and procedures. As a result, on November 9, 2021, it issued the updated “Bunge Canada COVID-19 Vaccination Policy” (the “Second Policy”) to meet the requirements set out in the HOPA Policy. Unlike the First Policy, the Second Policy not only requires employees to be fully vaccinated by January 24, 2022 unless they are exempt for medical or religious reasons, but also to provide proof of vaccination to the Employer and to attest to their vaccination status to HOPA. In the event of non-compliance, the Second Policy indicates that affected employees will not be permitted on site and will be placed on unpaid leave pending a final determination of their employment status, up to and including termination. Those who are only partially vaccinated will similarly be placed on unpaid leave until such time as they provide proof of full vaccination, but have the option of using vacation time in lieu, subject to management’s approval.
In response to the issuance of the Second Policy, the union filed a grievance alleging that the Second Policy “violates employee personal privacy/personal information and employee privacy rights”.
Submissions of the Parties
In its submissions, the union acknowledged the health and safety risk caused by COVID-19 in the workplace, but nonetheless asserted that the Second Policy is an unreasonable exercise of management’s rights, not only for requiring employees to disclose their personal health information, but also for placing unvaccinated employees on unpaid leave and for threatening discipline or termination for those who fail to become fully vaccinated. In particular, the union submitted that the Second Policy infringes on employees’ right to keep their confidential information private. The union further submitted that the HOPA Policy applies only to the North Property, such that the Employer cannot justify its application to the South Property on the basis that HOPA requires it to do so. The union therefore requested, amongst other things, the nullification of the Second Policy and the reinstitution of the First Policy.
Of particular relevance in the union’s view was the fact that although there had been six COVID-19 positive cases at Bunge (all of which were employees who worked at the South Property), there had been no evidence of COVID-19 transmission in the workplace since June 4, 2021, even prior to the issuance of the First Policy.
For its part, the Employer responded that the disclosure of vaccination status is not information protected by the Personal Health Information Protection Act, as alleged by the union, and, in the circumstances of the pandemic and of the HOPA Policy, that it is reasonable to require that information of employees. The Employer submitted that it was premature to consider the union’s objection to unpaid leaves, discipline and termination since none of these events had yet even occurred. The Employer further submitted that the HOPA Policy in fact applies to both of its properties and, in any event, that it would be far too impractical to distinguish between two facilities that are, in effect, integrated in operation.
Citing Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co., Arbitrator Herman confirmed that an employer can generally issue policies as long as they are reasonable and not inconsistent with the applicable collective agreement(s). He further confirmed that employees must comply with such policies or can properly face negative consequences, including of a disciplinary nature. That being said, whether a particular policy is reasonable or not will of course depend on the specific context and circumstances in play at the relevant time.
In the present case, in the context of the ongoing pandemic and the related serious risk and danger to health and safety, Arbitrator Herman found as follows:
- Regardless of whether the HOPA Policy applies or not to the South Property, it is reasonable for the Second Policy to apply to all employees regardless of work location in light of the significant disruption to the Employer’s operations that would occur if different vaccination policies or practices were to apply in each location.
- The Second Policy’s requirement to be fully vaccinated by January 24, 2022 or to be placed on unpaid leave is reasonable in light of the public health and safety risks that unvaccinated individuals create for both their vaccinated and their unvaccinated contacts. Arbitrator Herman accorded little weight to the lack of evidence of recent transmission in the workplace, in particular because of the fact that the HOPA Policy requires full vaccination and attestation, that Bunge employees cannot work remotely, and that operationally, the Employer could not properly function without compliance with the HOPA Policy. In his view, “[t]he lack of recent confirmed cases does not render unreasonable what is otherwise a reasonable policy.”
- The Second Policy’s requirement to disclose vaccination status is also reasonable because any privacy rights in this context were, in the arbitrator’s view, considerably outweighed by the minimal intrusion on said rights and the enormous public health and safety interests at issue.
- Finally, the Second Policy’s references to discipline and termination are still only a possibility. In the result, if and when one of these events actually occurs, a grievance can be filed at that time to resolve any resulting dispute. Accordingly, Arbitrator Herman found that it was reasonable for the Second Policy to make those references, simply in order to put employees on notice of the potential consequences for non-compliance.
In conclusion, Arbitrator Herman dismissed the grievance, finding that the Second Policy was a reasonable policy and a reasonable exercise of management’s rights.
In Our View
Interestingly, in the Bunge case, the union argued that testing was a reasonable alternative to unpaid leaves, suspensions and terminations. Although Arbitrator Stout found this to be a reasonable alternative in his decision in respect of the Electrical Safety Authority’s mandatory COVID-19 vaccination policy, Arbitrator Herman did not adopt the same view in the Bunge case given the different facts and circumstances at hand. He stated:
“The Union argues that testing is a reasonable alternative to unpaid leaves, suspensions, or terminations. The issue before me, however, is not whether testing or other alternatives exist that would be reasonable components of a COVID-19 policy, but whether the Vaccine Policy issued by the Employer is reasonable. While the absence of a testing alternative is relevant to consideration of this issue, for the reasons expressed above I am satisfied that the Vaccine Policy is reasonable without a testing requirement or a testing alternative. Here, using testing as an alternative to a mandatory vaccination requirement would put the Employer in breach of its lease obligations with HOPA, and therefore render the continued operation of its business potentially unfeasible, since it would then be barred from access to the North Property. In any event, there is no evidence before me that suggests a testing alternative would provide sufficient protection for employees and others entering upon either property.” [emphasis added]
Although the requirement in the Employer’s lease agreement to comply with HOPA policies and procedures was a significant factor in the outcome of this decision, it should nonetheless be noted that federally-regulated employers subject to Transport Canada’s directions now likely have a much more compelling argument in support of any mandatory COVID-19 vaccination policy that requires vaccine status disclosure and includes the possibility of leave without pay and termination for employees who refuse to be vaccinated.
For more information on your rights and obligations as an employer dealing with COVID-19, please contact Steven Williams at 613-940-2737, Jacques Emond at 613-940-2730, or Lauren Jamieson at 613-563-7660 ext. 236.