THE EMPLOYERS' EDGE
ARBITRATOR UPHOLDS COVID-19 VACCINE POLICY REQUIRING DISCLOSURE OF VACCINATION STATUS AND PLACING UNVACCINATED EMPLOYEES ON LEAVE OF ABSENCE
Recently, we have been blogging on decisions regarding COVID-19 vaccination policies. You can find our latest blogs on these decisions here, here and here. However, today’s blog, which covers the recent decision in Bunge Hamilton Canada v UFCW, Local 175, may be the most encouraging one for employers yet.
The company operations are split into two locations, the North (primary) and South (secondary) properties respectively. The North property is leased from the Hamilton Oshawa Port Authority (“HOPA”), which falls under Federal jurisdiction, whereas the South property is owned by the company. In June 2021 the company issued a COVID-19 Vaccination Policy. In November 2021, HOPA issued its own COVID-19 Vaccination Policy pursuant to Transport Canada (i.e. Federal) requirements. Pursuant to the HOPA Policy, the company was required to provide an attestation to HOPA that all of its employees had been fully vaccinated or a valid reason for not being vaccinated, by January 24, 2022. Tenants who failed to provide the required attestation would not be permitted on HOPA property until the attestation could be provided.
On November 9, 2021, the company issued an updated COVID-19 Vaccination Policy to reflect the HOPA requirements. The company Policy required all employees to provide proof of their vaccination status as well as a HOPA attestation form. According to the Policy, failure to do so could result in an employee being placed on unpaid leave of absence and subject to discipline up to and including termination of employment.
The union grieved both policies, but withdrew its grievance against the initial company Policy, which did not require disclosure of vaccination status by employees. The updated policy was grieved as an alleged unreasonable exercise of management rights by requiring disclosure of personal health information, and because it was unreasonable to place unvaccinated employees on unpaid leave of absence, terminate their employment or otherwise discipline them for failing to be vaccinated.
Arbitrator Robert Herman begins his decision by noting that employers are generally allowed to unilaterally institute policies affecting employees, provided they do not conflict with the collective agreement and are otherwise reasonable. What is reasonable depends entirely on the context of the workplace and the particular circumstances in issue. The decision deals with a number of aspects of the Policy, as outlined below.
Application to Both Sites
Operations at the North and South locations were too integrated to be subject to different requirements. Allowing unvaccinated employees to be reassigned to only the South facility would be impractical, unnecessarily costly to the company, violate existing provisions of the collective agreement and increase the risk of COVID-19 transmission throughout the company generally. Therefore, despite the fact that the HOPA Policy did not directly affect the South property, it was reasonable for the company Policy to apply equally to both sites.
Requirement to Provide Proof of Vaccination
The public health and safety risks associated with being unvaccinated were held to justify the placement of individuals on unpaid leave of absence for failing to provide proof of vaccination. Moreover, while the Policy did state that employees who failed to provide proof of vaccination could be subject to discipline up and including termination, the Policy did not require that result. Rather, leaves of absence would be utilized until a determination about employment status could be made. This flexibility allowed for individual circumstances to be considered in the application of the Policy. The fact that there had been no recent COVID transmission at the sites had no impact on the analysis of the Policy.
The requirement to provide proof of vaccination was held to be reasonable for a number of reasons.
First, Arbitrator Herman was skeptical that the provisions of the Personal Health Information Protection Act, prevented disclosure of employee vaccination status.
Second, the employer was required to comply with the HOPA Policy.
Third, employers can generally require production of employee medical information if necessary in order to protect the health and safety of other employees. As stated by Arbitrator Herman:
Similar information is sometimes required of individuals in many contexts, such as crossing borders, taking flights, entering restaurants, arenas, or concert halls. It is not unusual for disclosure of such information to be necessary for the protection of the health of members of the public. Vaccinated employees working at the two facilities, and others who enter those facilities from time to time, are entitled to be aware of whether unvaccinated persons are working on site and within their vicinity.
Fourth, the intrusion on personal privacy in asking for vaccination status is relatively minimal.
Fifth, since the requirement to be vaccinated in order to enter the facility was reasonable, employees would already know which of their colleagues were unvaccinated once the requirement came into effect.
Sixth, the Policy provided a reasonable period of time (approximately ten weeks) for employees to comply.
Seventh, the information disclosed was to be provided only to a select number of people who were required to know and stored in an appropriate manner.
While the ruling is clearly in favour of employers with COVID-19 Vaccination Policies in certain situations, it is also important to consider what the decision does not stand for. For example, the decision does not say that discipline or termination would be warranted per se. Rather, it stands for the proposition that a policy which makes discipline or termination a possibility can be reasonable. The question of whether discipline or termination is reasonable in any particular case must be decided in a specific grievance on that point.
Secondly, Arbitrator Herman distinguishes his award from a previous one where a similar policy had been found unreasonable (we blogged on that decision here). In doing so, he noted that third party requirements affected the entirety of the company’s operations, unlike the employer in the other decision, which was less affected by third parties. It is clear that third party requirements played a large part in upholding the Policy in this case. However, in sectors where such requirements are absent, similar policies may be more difficult to justify.
If your business is looking to institute a CIVID-19 policy or looking to have your current policy updated on the basis of the latest developments in the law, please reach out to the lawyers for employers at CCPartners for proper guidance and support.