Mandatory Vaccination policies – are they enforceable?

A fourth arbitral decision in Ontario was released on January 4, 2022 that considered a company’s mandatory vaccination policy and whether it was enforceable.  In Bunge Hamilton Canada, Hamilton Ontario and United Food and Commercial Workers Canada, Local 175 the arbitrator found that the company’s blanket mandatory vaccination policy (Vaccine Policy) was reasonable.  This was despite the fact that the company had two different work locations, only one of which had mandatory vaccination requirements.

The company operated a vegetable oil refinery plant.  Its primarily location was on land leased from the Hamilton Oshawa Port Authority (HOPA), which was regulated by the Federal Government.  The company’s secondary operations were on property that was owned by the company.  The company would have employees generally work at either one or the other location, although they would reassign employees between the properties as the company deemed necessary.  Given the federal government vaccination requirement, HOPA put in place a requirement that all employees of companies conducting work on HOPA lands must be fully vaccinated.  In response to the implementation of this policy, the Company implemented the Vaccine Policy, which made COVID 19 vaccination mandatory at all work locations.  The Vaccine Policy requires all employees, regardless of which property they are working on, to be fully vaccinated unless they have an approved medical or religious exemption.  Employees who had not provided proof of vaccination by January 24, 2022 would not be allowed on site, would be placed on unpaid leave and may be subject to further disciplinary action including termination.

The union grieved the policy, alleging that the policy violates employee personal privacy/personal information and employee privacy rights.  The union also argued that the policy could not be justified for those employees working on the non HOPA property and that the Company could accommodate workers by simply having non vaccinated workers work on the non HOPA property. Any workplace policy must be reasonable and in the case of unionized workplaces must also be consistent with the collective agreement.  In assessing reasonableness and consistency, an analysis of the context and circumstances are critical.  The arbitrator found that the Vaccine Policy is a reasonable policy in the circumstances and a reasonable exercise of management’s right to issue workplace policies.  This finding was based in part on the difficulties that would be faced by the Company if the policy were only to apply to employees on the HOPA property.  This would require the employer to change their operations in a material respect and would result in the employer incurring significant additional operating costs.  It would eliminate the ability of the Company to reassign employees between the properties as needed and would require the employer to establish a separate training program.  The arbitrator also put weight on the resultant intermingling between unvaccinated and vaccinated employees which would put all employees at a greater risk of contracting COVID 19.  The arbitrator also found that eliminating the ability to reassign workers to properties as needed would likely breach the union’s collective agreement, specifically the job posting, transfer and seniority rights provisions.

The arbitrator considered whether a lesser measure may accomplish the same purposes of the Vaccine Policy, such as remote working or a testing alternative.  The arbitrator found that lesser measures would not comply with the federally imposed vaccine policy on the HOPA property.  In response to the union’s argument that there had been no recent COVID 19 transmissions on the property the arbitrator found that “lack of recent confirmed cases does not render unreasonable what is an otherwise reasonable policy”.  The requirement to disclose vaccination status was also found to be reasonable and not a breach of privacy legislation.  The arbitrator concluded that the employees rights to privacy are considerably outweighed by the minimal intrusion on such rights that the requirement to disclose vaccination status imposes, particularly when taken into consideration with the enormous public health and safety interests at issue.

This decision is the first to fully endorse an employer’s mandatory vaccination policy without amendment or an alternative for frequent testing for unvaccinated employees.  To be enforceable a vaccine policy will need to take into consideration the specific requirements of the business and also comply with the Human Rights Code by providing for exceptions for those that are unable to be vaccinated for religious or medical reasons.  The analysis with respect to the enforceability of the policy will take into consideration whether lesser measures, such as remote working or frequent testing, are sufficient to address the concern of transmission of COVID 19 in the workplace.  From the decisions to date employers can be comfortable that a policy requiring disclosure of vaccine status will be found to be a reasonable intrusion into the privacy rights of employees given the significant business and health risks posed by COVID 19.

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