Port of Hamilton, where vegetable oil refiner Bunge manufactures and ships its product. An arbitrator recently upheld the company’s workplace vaccination policy that does not allow alternatives to inoculation, such as frequent testing. Photo credit: HOPA Ports
As we get reset to re-open under the Ontario government’s three-phased reopening plan commencing Jan. 31, 2022, employers will need to review their stance and implementation of their workplace vaccination policies.
You will recall from my earlier articles, the legal “progress” concerning decisions on the enforceability of employers’ vaccination policies has primarily been occurring on the labour (unionized through grievance arbitrations) and not the employment (non-unionized, court) front. Bunge Hamilton Canada, Hamilton Ontario and United Food and Commercial Workers Canada, Local 175 is the fourth and latest arbitral decision.
In Bunge the arbitrator found that Bunge’s blanket mandatory vaccination policy was “reasonable” notwithstanding the fact that Bunge had two different work locations, only one of which was subject to a government mandatory vaccination requirement.
The Bunge decision reinforced the previous decisions’ upholding of the policy’s disclosure of vaccination status requirement as “reasonable” and not a breach of privacy legislation. In this regard, the arbitrator held that employees’ rights to privacy are “considerably” outweighed by the minimal intrusion imposed by such disclosure requirements, especially given the enormous public health and safety interests at play. What is of note is that the Bunge decision is the first to fully endorse an employer’s mandatory vaccination policy without amendment or an alternative for frequent testing for unvaccinated employees. A sign of the times?
As always, we must look at the individual circumstances at play for each decision prior to drawing any principals of general application. In this case:
– Bunge’s primary location, a vegetable oil refinery plant, is on land leased from the Hamilton Oshawa Port Authority (HOPA), which is regulated by the federal government.
– Bunge’s secondary location is located on property owned by Bunge and not subject to any such requirement.
– While Bunge’s employees generally work at one location, as necessary to operational needs employees could be reassigned to the other location.
In response to the HOPA requirements, Bunge implemented its vaccine policy that mandated: (1) full COVID 19 vaccination for all employees unless they have an approved medical or religious exemption; and (2) employees who have not provided proof of vaccination by Jan. 24, 2022 would: (a) not be allowed on site; (b) be placed on unpaid leave; and (3) may be subject to further disciplinary action up to and including termination.
The union grieved the policy, alleging that it violates employees’ personal information as well as employee privacy rights arguing that: (1) this blanket policy could not be justified as a “reasonable” policy under the collective agreement’s management rights clause for those employees working at the secondary, non-HOPA property; and (2) non-vaccinated workers could be accommodated by assigning them to work at the secondary location.
The arbitrator found that the vaccine policy is a reasonable policy in the circumstances as well as a reasonable exercise of management’s rights. This finding was based on:
– The operational difficulties that would be faced by Bunge if the policy were only to apply to employees on the HOPA property. Operations would need to materially change and significant additional operating costs would be incurred as a result of: (1) the loss of flexibility of reassigning employees between the properties as needed; and (2): the need to establish separate training programs.
– Any intermingling between unvaccinated and vaccinated employees would put all employees at a greater risk of contracting COVID 19.
– Eliminating the ability to reassign workers to properties as needed would likely breach the job posting, transfer and seniority rights provisions of the collective agreement.
– A lesser measure, such as remote working or a testing alternative, would not comply with the federally imposed vaccine policy on the HOPA property.
This was notwithstanding the fact that there had been no recent COVID 19 transmissions on the property. In relation this fact that is normally a consideration, the arbitrator noted that the “lack of recent confirmed cases does not render unreasonable what is an otherwise reasonable policy”.
Practically speaking:
- From the decisions so far, employers can rest comfortable that a vaccination policy requiring disclosure of vaccine status will be upheld as a reasonable intrusion on the privacy rights of employees given the significant business and health risks posed by COVID 19.
- On the downside, the current labour supply shortage undermines employers without such government or regulatory requirements and/or a lower risk of workplace transmission, inability to hold firm in “principle” to mandatory vaccination policies.
- On the upside, the current labour supply shortage can reduce the total liability of employers facing constructive dismissal claims arising from the pandemic given:
- The elimination of the plaintiff’s argument for a “COVID-19 bump” up to their common law reasonable notice periods in industries not negatively impacted by the pandemic; and
- The increased ability for plaintiff’s to quickly mitigate their damages.
Sheryl L. Johnson brings a proactive, creative, and vibrant attitude to her labour, employment and human resource law practice. Sheryl has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment and labour law, including for example construction labour law, employment related civil wrongful dismissal, human rights, and labour board litigation; privacy, governance, statutory and regulatory compliance, and executive compensation matters; as well as conducting workplace training and workplace investigations. Sheryl is also an avid educator and writer, including authoring a bi-weekly business column in The Niagara Independent and the text: Sexual Harassment in Canada: A Guide for Understanding and Prevention. Sheryl enjoys in her free time giving back to the Niagara community. She is a member of the WIN Council, Chair of the Board of Directors for the Niagara Jazz Festival, Vice-President of the Board of Directors for the YWCA Niagara Region, Secretary of Big Brothers Big Sisters of Niagara Falls Board of Directors, a board member of the Niagara Home Builders Association, and a board member of the Women in Construction group of the Niagara Construction Association.
You can connect with her on LinkedIn or contact her at sljohnson@sullivanmahoney.com.
