Case law related to pandemic policies and practices continues to flow through the courts, arbitration and are being heard before the Ontario Labour Relations Board (OLRB). In this Insights article, we review the case of Bunge Hamilton Canada v. UFCWC, Local 175 by Arbitrator Robert Herman.
The Facts
This case concerned employer policy requiring an employee to be vaccinated or be placed on an unpaid leave of absence – with the warning of discipline and termination later. The employer had two industrial properties in Hamilton, one of which was leased to them. The landlord of one of the properties made it a rule that anyone entering the property had to be vaccinated against COVID-19. Building on this, the employer required all its employees be vaccinated or face a leave, on the basis that the two properties were integrated operations where employees had to move between them.
The Decision
In upholding the policy, the arbitrator started from the proposition that COVID-19 continues to pose a serious risk and danger to the health and safety of he public, the economy, the education system, and general quality of life. Omicron created the risk of a potential increase in the challenges faced. He noted that the employer was generally able to require proof of employee medical information (namely vaccination status) if necessary to protect the health and safety of other employees.
Given the restriction on the one property, and their integrated status of the two properties, the arbitrator held that major operational disruptions would have to be incurred by the employer if unvaccinated employees were permitted to keep working and that any measures taken to manage employees and limit them to one property could itself be a breach of the Collective Bargaining Agreement.
Ultimately, given the restrictions imposed on the employer by the landlord and the disruption directly associated with restricting unvaccinated employees to work at one location, the arbitrator found that creating a blanket vaccine policy was reasonable, as was putting employees on an unpaid leave after a deadline if they didn’t comply.
Interestingly, the arbitrator distinguished between an unpaid leave and a disciplinary suspension – a distinction that’s been a bit muddled in the COVID-19 case law. It is important to note that the policy was reasonable as a precautionary measure. Additionally, there had not been any cases of workplace transmission in recent times. Given the circumstances and risks faced by employees, it was okay to take this as a precautionary measure.
The arbitrator made two other important rulings
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- The employer was permitted to require employees to attest to their vaccine status where it took reasonable measures to protect the confidentiality of the information, reiterating similar findings in earlier decisions.
- The arbitrator held off on deciding whether discipline or termination for non-compliance would ultimately be warranted for being unvaccinated. What he did say was that it wasn’t unreasonable to warn employees of this potential consequence, and such a warning was even required if an employer later wanted to impose that discipline. But for now, that discipline was just a possibility.
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Conclusion
The arbitrator addressed the ESA decision by Arbitrator Stout, which refused to allow a vaccinate-or-leave policy and distinguished it by saying that in this case there was much greater interference with the employer’s business because of the leaser’s rules. It is important to add a caveat with this case – while it’s great to see Arbitrator Herman show a real openness to these types of policies, it may be distinguishable in circumstances where a third party is not restricting access to the worksite for the unvaccinated.
PooranLaw will continue to monitor the ongoing legal developments related to COVID-19. 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.
