Recent Mandatory COVID-19 Vaccination Policy Upheld by Ontario Arbitrator

On January 4, 2022, Arbitrator Herman issued his decision in Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175. In this matter, United Food and Commercial Workers Canada (“UFCW”) alleged that Bunge Hamilton Canada’s (“Bunge”) mandatory COVID-19 vaccination policy was unreasonable.

Arbitrator Herman dismissed the grievance, finding that the vaccination policy was reasonable in the circumstances. This decision provides helpful guidance for employers seeking to implement a mandatory COVID-19 vaccination policy in their workplace.

The Policy

On or around June 22, 2021, Bunge implemented a COVID-19 vaccination policy for all Bunge employees (the “Old Policy”). This policy did not impose any penalties on employees who were unvaccinated or who refused to disclose their vaccine status and was not grieved by UFCW.

On November 2, 2021, the Hamilton Oshawa Port Authority (“HOPA”) announced that all tenants of HOPA properties must comply with HOPA’s new COVID-19 vaccination policy, which was issued in response to new Transport Canada requirements. HOPA’s new COVID-19 vaccination policy required all employees of companies located on port lands to be fully vaccinated against COVID-19 by January 24, 2022.

Bunge’s operations were divided into two facilities: the North Property, where most of Bunge’s training and operations occurred, and the South Property. The North Property was leased from HOPA and was accordingly covered by HOPA’s COVID-19 vaccination policy. As a result, on November 9, 2021, Bunge issued an updated COVID-19 vaccination policy (the “Policy”) for all Bunge employees working at both the North and South properties. The Policy required all Bunge employees to attest to being fully vaccinated against COVID-19 by January 24, 2022. A failure to comply with the Policy would place unvaccinated employees on unpaid leave until they could demonstrate their full vaccination status and would prevent those employees from coming onto Bunge property until they received their COVID-19 vaccinations. The Policy also provided for medical and creed-based vaccination exemptions on a case-by-case basis.

The Decision

UFCW raised three arguments against the Policy. First, UFCW argued that the Policy infringed employees’ privacy rights by requiring mandatory disclosure of vaccination status. Second, UFCW submitted that the Policy’s requirement that employees either provide proof of vaccination status or be placed on unpaid leave “pending a final determination of their employment status” was unreasonable. Third, UFCW argued that it was unnecessary to completely replace the Old Policy, as unvaccinated employees could work on the South Property without infringing HOPA’s COVID-19 policy, there were no recent confirmed cases of COVID-19 in the workplace, and rapid testing was a reasonable alternative for employees who would not disclose their vaccination status.

Arbitrator Herman dismissed each of UFCW’s arguments. First, Arbitrator Herman held that any infringement of employees’ privacy rights was minimal and was outweighed by Bunge’s legitimate need to receive vaccination status information to protect public health and the health and safety of its workers.

Second, Arbitrator Herman held that it was reasonable for the Policy to “put employees on notice” of potential consequences of their failure to comply, including notifying employees that they would be placed on unpaid leave and could be disciplined or terminated. Importantly, Arbitrator Herman noted that the reasonableness of any discipline or termination under the Policy could be determined in a later grievance: the question in the present matter was solely whether the Policy was reasonable.

Third, Arbitrator Herman determined that it was reasonable for Bunge to replace the Old Policy in order to comply with HOPA’s new directive. Given that the bulk of Bunge’s operations occurred on the North Property and that the smooth operation of Bunge’s plant required employees to move interchangeably between the North and South Properties, it was appropriate to implement a company-wide COVID-19 vaccination policy that complied with HOPA’s requirements. Further, Arbitrator Herman found it to be irrelevant that no recent COVID-19 cases were found amongst Bunge employees given the transmissibility of COVID-19 and the virus’ effects on unvaccinated individuals. Finally, Arbitrator Herman dismissed UFCW’s suggestion of rapid testing for unvaccinated workers. Arbitrator Herman found that the issue before him was not whether there were potential alternatives for unvaccinated employees, but rather whether the overall policy was reasonable.

Significance

This decision provides further support for the reasonableness of mandatory vaccination policies, though the circumstances considered by Arbitrator Herman were somewhat unique given the terms of Bunge’s lease agreement with HOPA. Notably, Bunge’s mandatory COVID-19 vaccination policy was upheld despite Bunge’s operations not being a “high risk” or public-facing setting.

For advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.

We will continue to monitor workplace related COVID-19 developments and provide further updates as information becomes available.