As Arbitrators continue to evaluate vaccination policies in unionized workplaces, another recent decision emphasizes that the reasonableness of a vaccination policy is a context-dependent finding.
In Bunge Hamilton Canada, Hamilton Ontario v United Food and Commercial Workers Canada, Local 175, Arbitrator Herman upheld a mandatory vaccination policy, joining a growing body of arbitral decisions where mandatory vaccination policies have been found to be reasonable and enforceable.
In November 2021, the Hamilton Oshawa Port Authority (“HOPA”) introduced a mandatory vaccination policy for all its tenants, requiring all employees of the companies operating on port lands to be vaccinated by January 24, 2022. Employees of HOPA tenants not vaccinated by that date would no longer be permitted on HOPA property.
Bunge Hamilton (“Bunge”) is an oilseed processing company which operated two facilities across the street from one another; the North Property is located on HOPA property, while the South Property is not. Earlier in the year, Bunge had introduced a voluntary vaccination disclosure policy (the “Old Policy”). Nevertheless, following HOPA’s mandate, Bunge revisited its vaccination policy and introduced a mandatory vaccination policy requiring all employees to be vaccinated by January 24, 2022. The policy advised employees that failure to comply with the policy could face discipline or termination of employment.
In response, the United Food and Commercial Workers Union, Local 175 (“UFCW”) proceeded to file a grievance, contesting the vaccination policy on the grounds that the requirement to disclose vaccination status infringed upon the employee’s rights to keep their personal medical information confidential, and that a staff-wide policy mandating vaccinations and imposing discipline, unpaid leaves of absences, or terminating employees was an unreasonable exercise of management rights.
Arbitrator Robert Herman dismissed the grievance, finding that Bunge’s requirement to disclose vaccination status was reasonable. In holding so, he found that the policy’s disclosure requirements were minimally intrusive and outweighed by the public health and safety concerns presented by COVID-19, as recognized in previous arbitral decisions.
Arbitrator Herman also then found the mandatory vaccination policy itself reasonable, noting the following in support of his decision:
- The revised policy was implemented following the introduction of HOPA’s mandate requiring all property tenants and their employees to be vaccinated. Bunge’s non-compliance with HOPA’s policy would have significantly impeded their business operations, despite the fact that only one facility was located on HOPA property, because the two facilities effectively functioned as one, and remote work was not a feasible option for most positions.
- Unvaccinated individuals were found to present a public safety and health risk for both vaccinated and unvaccinated individuals who may come into contact with them.
- Even though there had not been any reported transmission since the introduction of the Old Policy, it did not change the risk of exposure and the consequences of infection, particularly for unvaccinated employees.
- It was reasonable to include the consequences of non-compliance, such as leaves of absences or termination, within the policy itself, in order to notify employees. Any issue with respect to the reasonableness of a particular disciplinary measure taken against a particular employee could be addressed via a subsequent grievance, taking into account the particular circumstances surrounding that situation, at that time.
- The failure to provide testing as an alternative to vaccinations, while recognized as a relevant consideration, ultimately did not render the policy unreasonable, given that testing would still be non-compliant with HOPA’s vaccine mandate and significantly impede operations.
As discussed previously, the reasonableness of a vaccination policy is a fact-specific finding depending on the operational needs and health and safety conditions of a particular workplace, collective agreements, as well as public health and legislative mandates. In this decision a determinative factor was the need to adhere to third-party vaccination mandates for continued operations. As a growing number of decisions indicate, arbitrators are willing to uphold vaccination policies, but companies should be willing to demonstrate that such policies are tailored and responsive to an organization’s particular needs.