Case Law: Upholding Vaccine-or-Leave Policy

As employers across the province continue to respond to the COVID-19 pandemic through the implementation of various policies and practices, case law developments continue to clarify this once murky area of law. In this Insights article, we review the Unifor Local 973 v Coca-Cola Canada Bottling Limited decision, heard on March 9, 2022, and released on March 17, 2022, by Arbitrator Mark Wright.

The Facts:

This case concerned an employer policy requiring employees to either be fully vaccinated against COVID-19 or risk being placed on an unpaid leave of absence and face further discipline up to and including termination. The employer was a Coca-Cola bottling plant, with 700 bargaining unit employees attending in person and working in close quarters with other employees or the public during deliveries in the community. Many of the employer’s customers had their own vaccination policies in place. At the time, the company had been significantly impacted by COVID-19, with two employees having died, the closure of multiple sites, 870 positive cases nation wide (of which 409 were in January alone, which made up 13% of the national work force), and a sharp increase in hospitalization of workers.

On October 26, 2021, Coca-Cola announced a nation-wide COVID-19 vaccination policy requiring employees to be vaccinated with two doses by January 1, 2022, unless they had a valid human rights-related reason for being unvaccinated. Those employees who refused to show proof of vaccination by the November 15 deadline were considered unvaccinated, and were directed to participate in an educational program.  As the effective date of January 1, 2022 approached, the employer initially announced that all unvaccinated employees would be subject to enhanced safety measures and rapid testing on their own time but at the company’s expense. They were again warned that continued non-compliance could result in leaves of absence without pay and the possibility of discipline up to and including termination. Finally, on January 12, 2022, in light of the Omicron variant, the Employer advised employees that they must be vaccinated by January 31, 2022, or be placed on an indefinite unpaid leave. Partially vaccinated employees would not initially be placed on leave but would eventually be placed on a leave if they did not become fully vaccinated.

Ultimately, 48 employees at the Brampton facility at issue were placed on a leave of absence, but none had been disciplined or terminated. The company achieved 96% staff full vaccination (two doses) by the date of the hearing on March 9, 2022.

The Decision:

The union challenged the reasonableness of the policy, claiming that less intrusive means were available that would permit the employer to meet its obligations under the Occupational Health and Safety Act (OHSA), that personal and political beliefs as strong as their employees ought to be considered by the employer, and that it was unreasonable to ask employees to choose between bodily integrity and their earnings. The Employer argued that the policy was reasonable in that it balanced the employee’s right to privacy, bodily integrity, and autonomy with the employer’s obligation to ensure a safe and healthy workplace. The employer pointed to its progressive steps in escalating measures to support reasonableness, and the avoidance of discipline up to that point.

 The Arbitrator upheld the policy as a reasonable balance between the interests of the parties, holding that the context was important in assessing the reasonableness of such workplace policies. The context of the serious global pandemic, which given its toll on human life, makes mandatory use of safe and effective vaccines that reduce transmission and reduce disease seriousness reasonable. Arbitrator Wright held that while this was an extraordinary measure, the pandemic was an extraordinary health challenge, and found the policy to be a reasonable precaution required by s. 25(2)(h) of OHSA. Arbitrator Wright noted that COVID-19 had a significant impact on the company nationally and at the Brampton facility, with death, widespread illness, and multiple closures with millions in lost production. The impact of the virus had worsened form the initial virus to Delta to Omicron variants, as indicated in the surge of hospitalizations in January and a large spike in cases. The policy was clearly communicated to staff, and the workplace consequences were progressive in escalation.

In response to the Union’s argument that the policy was unreasonable because less intrusive test-or-vaccinate policies were available, Arbitrator Wright distinguished Electrical Safety Authority v Power Workers’ Union [ESA] based on the follow:

        • In contrast to the case before him, a significant majority of employees could work remotely in ESA;
        • The Employer in ESA did not lead any evidence to refute the Union’s claim. In contrast, in this case the January spike in cases during which rapid testing was occurring was proof that the measures were insufficient; and
        • The ESA decision pre-dated Omicron and new evidence from the Science Table illustrates that rapid antigen tests are less sensitive as compared to the Delta variant.

In respect of the Union’s argument that the Arbitrator should give weight to the strong personal beliefs of people who choose not to be vaccinated, the Arbitrator said this did not undermine the reasonableness of the policy – only Human Rights Code protected grounds were entitled to accommodation, not personal beliefs. Finally, in respect of the union’s argument that although the choice between bodily integrity/livelihood and earning a living is exceptionally hard and relevant to the reasonableness of the policy, the Arbitrator conceded that this still favored the employer’s health and safety interest.

No employees had been disciplined to date or terminated, though they were warned clearly that this could occur, and this warning was found to be reasonable. Arbitrator Wright found that a vaccine policy that contemplates discipline can be reasonable if it is possible but not the inevitable outcome of non-compliance. Finally, the Arbitrator noted that employees should be given notice and one last chance to vaccinate before discipline is imposed. When Arbitrator Wright was also asked how much notice should be given, he said an appropriate timeline for non-compliant employees was until April 4, 2022 to start the vaccination process.

This decision once again upholds a vaccine-or-leave policy and contemplates the decision to impose discipline because of non-compliance. It is important to note that the hearing was on March 9, 2022, so the April 4 timeline extension was being contemplated at a time when Ontario’s Reopening Plan is set to reach its final stage on April 27, 2022.

Why is this case important?

This case is important for employers in essential services settings in particular because it reinforces the employer’s obligation to protect the safety of its workers to hold employees out of work who refuse to do so.  This decision will only lay further support to a developing recognition that vaccinate-or-leave policies were reasonable during the pandemic, and that leave of absence for non-compliance is also a reasonable consequence.

PooranLaw will continue to monitor legal developments related to vaccination policies.  In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.