Arbitrator upholds mandatory vaccination policy
January 6, 2022
In a decision released on January 4, 2022, Arbitrator Herman denied a grievance from the United Food and Commercial Workers Canada, Local 175 (“UFCW”) concerning a workplace policy on mandatory vaccination against COVID-19 issued by Bunge Hamilton Canada (“Bunge”). UFCW grieved that the policy—which placed non-compliant employees on unpaid leave—was an unreasonable exercise of managerial rights and that it should be declared null. Arbitrator Herman disagreed, finding that the Bunge Policy was reasonable.
Bunge operates an oil processing facility out of two locations across the street from each other. One location (the “North Property”) is on leased ground from the Hamilton Oshawa Port Authority (“HOPA”), a federally-regulated organization. Bunge owns the second location (the “South Property”). Bunge’s primary operations are located in the North Property.
Initially, on June 22, 2021, Bunge had issued a vaccination policy with the stated purpose of “verify[ing] vaccination rates” to gauge risks, determine safety protocols and determine operational needs. This initial policy neither required employees to disclose their vaccination status nor did it entail adverse employment action for employees who were unvaccinated or failed to disclose their status.
On November 1, 2021, pursuant to Transport Canada directives, HOPA issued its own vaccination policy (the “HOPA Policy”). This policy required all employees of companies located at the port to provide attestation about their vaccination status by January 24, 2022, subject to medical exemptions. Non-compliant employees were to be prohibited from entering HOPA property.
Then, on November 9, 2021, Bunge issued a new vaccination policy (the “Bunge Policy”), which was the subject of the grievance before Arbitrator Herman. Subject to medical and religious exemptions, the policy required Bunge employees to provide proof of vaccination to management by January 24, 2022. Having provided this proof, Bunge employees were then to fill out the HOPA attestation. The policy further stated, “Employees who are not fully vaccinated and/or do not intend to provide proof of fully vaccinated status by January 24, 2022, will not be allowed on the site and put on unpaid leave pending a final determination on their employment status (up to and including termination of employment)” (para 6).
In seeking a declaration that the Bunge Policy was unreasonable, UFCW argued that it violated the Personal Health Information Protection Act, 2004 (“PHIPA”) and that Bunge had failed to consider other safety measures and accommodations. UFCW argued that the HOPA Policy applied to the North Property only, since HOPA did not own the South Property. As such, according to UFCW, Bunge could schedule unvaccinated employees at the South Property and reserve the North Property for the vaccinated only.
Arbitrator Herman gave significant weight to Bunge’s obligation to comply with the HOPA Policy, a failure of which could place Bunge in breach of its lease and potentially rendering business infeasible. He declined to determine whether the HOPA Policy applied to both the North and South Properties. Bunge’s operation depended on the seamless integration of the two locations. Most of the operations (such as employee training) took place in the North Property and employees regularly moved between the locations. Thus, to divide the operations based on vaccination status would materially interfere with Bunge’s business. Such division could, furthermore, breach collective agreement provisions regarding job postings, transfers and seniority rights. As such, even if the HOPA Policy applied to the North Property only, it was reasonable for the Bunge Policy to apply to all employees at both locations.
Additionally, Arbitrator Herman noted that management can establish rules (such as requiring the production of employees’ medical information) to protect the health and welfare of other employees. He wrote, “[v]accinated 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” (para 24). With respect to privacy and confidentiality, Arbitrator Herman found that it was not clear whether requiring the disclosure of employees’ vaccination status would violate PHIPA. Moreover, the information would be stored and available only on a “need to know” basis. In any event, any intrusion upon privacy was minimal and outweighed by the “enormous public health and safety interest at issue” (para 25). Arbitrator Herman commented on the gravity of the ongoing COVID-19 pandemic, particularly with the emergence of new variants such as Omicron (para 15). Furthermore, the employees were provided with a reasonable period of time—from November 10, 2021 to January 24, 2022, for a total of approximately 11 weeks—to comply with the Bunge Policy.
Arbitrator Herman found that, particularly given the HOPA Policy and integration of the two locations, being placed on unpaid leave was a reasonable response to non-compliance with the Bunge Policy. The policy itself did not provide for the automatic suspension of non-complaint employees—only that they could be suspended. Arbitrator Herman noted that, in any case, should a suspension arise, a grievance could be filed and determined at arbitration based on the circumstances at hand at the relevant time. He also noted that the lack of recent confirmed cases at Bunge did not render unreasonable what is otherwise a reasonable policy. UFCW had raised the possibility of mandatory testing as an alternative, but Arbitrator Herman found that the Bunge policy was reasonable without such an alternative.
We previously blogged about one mandatory testing policy and one mandatory vaccination policy that were upheld and one that was struck down. We will continue to monitor arbitral decisions regarding these policies.
Authored by David Ragni and Paniz Khosroshahy