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Mandatory vaccination policy requiring unvaccinated unionized employees to be placed on unpaid leaves of absence pending a final determination of their employment status upheld as reasonable

Ontario

,

Canada

Policy Requiring Employees to Attest Fully Vaccinated or Go On Unpaid Leave Upheld as Reasonable In Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175, 2022 CanLII 43 (ON LA), United Food and Commercial Workers Canada, Local 175 (“the Union”), filed a policy grievance alleging that the new COVID-19 vaccination policy (“Vaccine Policy”) issued by the employer, Bunge Hamilton Canada (“Bunge”), violated employee personal privacy/personal information and employee privacy rights.Bunge operated an oilseed crush/refine processing facility in Hamilton, Ontario. One of the properties involved in Bunge’s facility was located on land leased from the Hamilton Oshawa Port Authority (“HOPA”), which was a federally regulated organization. There had been no evidence of COVID-19 transmission in the workplace since June 4, 2021.In late 2021, Bunge introduced the Vaccine Policy requiring all employees to be fully vaccinated by January 24, 2022. The Vaccine Policy was implemented by Bunge to comply with HOPA’s policy for contractors leasing its lands. The HOPA policy required that employees attest to their fully vaccinated status by January 24, 2022, or they would be barred from entry on HOPA property until such time as they could attest that they were fully vaccinated. In turn, Bunge’s Vaccine Policy stipulated that all employees to whom the policy applied must provide proof of fully vaccinated status to their facility manager by January 24, 2022, and must fill out a HOPA attestation form to be submitted to HOPA. The HOPA attestation form asked employees to attest to whether they had been fully vaccinated, or whether they had been unable to obtain a vaccination due to a medical contraindication. The only other information requested of employees was information that identified the employee that provided contact information, and a question asking whether the employee had a Port Security Access Card. Exceptions to the requirement to be fully vaccinated in the company’s Vaccine Policy were not limited to medical reasons and included exceptions for religious grounds or reasons of creed, with requests for such exemptions to be considered on an individual basis.The Arbitrator found that the policy was reasonable and did not violate health privacy legislation.The continued presence of COVID-19 presented a serious risk and danger to the health and welfare of the public, to the economy and the education system, and to everyone’s ability to fully enjoy life. Public health and safety measures had not as yet been able to fully control the spread of the virus or its potentially terrible ramifications.The Arbitrator held that the requirement to disclose vaccine status was reasonable. Management can generally establish rules that require the production of employees’ medical information if necessary, in order to protect the health and welfare of other employees, as was the case here. Similar information is sometimes required of individuals in many contexts, such as crossing borders, taking flights, entering restaurants, arenas, or concert halls. It is not unusual for disclosure of such information to be necessary for the protection of the health of members of the public.The Arbitrator held that vaccinated employees working at the two facilities, and others who enter those facilities from time to time, were entitled to be aware of whether unvaccinated persons were working on-site and within their vicinity. The intrusion upon an individual’s privacy with respect to the disclosure of personal health information was relatively minimal. Employees were only being asked to reveal their vaccine status, and nothing more concerning their personal health.Any privacy rights in this context were considerably outweighed by the minimal intrusion on such rights and the enormous public health and safety interests at issue. In the result, the Arbitrator was satisfied that the Vaccine Policy and attestation requirement in the Vaccine Policy was reasonable. Additionally, given the public safety and health risks unvaccinated persons created for both vaccinated and unvaccinated persons who come in contact with them, the Vaccine Policy issued by the employer was reasonable in its requirement that a condition of working at either facility and coming on-site after January 24, 2022, was that employees be fully vaccinated, and if they were not, they would be placed on unpaid leave. Using testing as an alternative to a mandatory vaccination requirement would have put Bunge in breach of its lease obligations with HOPA. In any event, there was no evidence before the Arbitrator that suggested a testing alternative would provide sufficient protection for employees and others entering Bunge’s facilities.

April 14, 2022
Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175, 2022 CanLII 43 (ON LA)