Canada: Non-Compliant Employees can be placed on Unpaid Leaves of Absence

Author: Tawanda Masimbe

In Unifor Local 973 v Coca-Cola Canada Bottling Limited, 2022 CanLII 20322 (ON LA), an Ontario arbitrator dismissed a policy grievance that challenged an employer’s mandatory COVID-19 vaccination policy. In dismissing the grievance, Arbitrator Wright held that the policy, which provided for non-compliant employees to be placed on a leave of absence and contemplated the possibility of discipline or termination of employment, was reasonable.

Background Facts

Coca-Cola Canada Bottling Limited (the “Company”) has a facility in Brampton, Ontario. The Company’s Brampton facility is the largest bottler of Coca-Cola products in Canada and the second largest in North America. Unifor Local 973 (the “Union”) is the bargaining agent for approximately 700 employees working at the Company’s Brampton facility. All bargaining unit employees had to attend the workplace to perform their work, and the vast majority of them worked in close quarters with their colleagues. Drivers in the bargaining unit also regularly interacted in close contact with customers, many of which had their own vaccination policies that required anyone who attended at their premises to be vaccinated.

The Policy

On 26 October 2021, the Company announced its implementation of a nationwide COVID-19 vaccination policy (the “Policy”). Existing employees were advised that they needed to be fully vaccinated with two doses of an approved vaccine by 1 January 2022, or face workplace consequences, which could include disciplinary sanctions up to and including termination of employment. The Policy provided for accommodation consistent with human rights legislation for those employees who were unable to get a vaccine due to protected grounds.

Prior to the publication of the Policy, the Company asked employees to volunteer information about their vaccination status and provide proof of same. At the time the Policy was published, 75% of the workforce had indicated that they were fully vaccinated.

On 7 December 2021, the Company advised employees that additional workplace measures would apply to employees who were not fully vaccinated. Effective 3 January 2022, unvaccinated employees would be required to wear face shields over their masks when on site or in the field, and effective 17 January 2022, unvaccinated employees would have to submit to a mandatory rapid testing program. The Company further advised that additional protocols could apply to unvaccinated employees, including being placed on an unpaid leave of absence or being disciplined, up to and including termination of employment.

On 12 January 2022, the Company advised employees that effective 31 January 2022, all unvaccinated employees would be placed on indefinite unpaid leave. Partially vaccinated employees were not initially placed on indefinite unpaid leave, but were later placed on leave if they did not become fully vaccinated in accordance with the Policy.

The Decision

At the arbitration hearing, the Union argued that the Policy was unreasonable. However, Arbitrator Wright held that the Policy established a reasonable balance between the employees’ rights to privacy and bodily integrity, and the Company’s interest in maintaining the health and safety of the workplace. Additionally, Arbitrator Wright found that the Company acted reasonably when it added further protocols to the Policy, such as providing that unvaccinated employees would be placed on a leave of absence. As with all decisions, context is important. Key to the case before Arbitrator Wright were the following factors:

• The Policy was a response to a global health pandemic that had claimed 6 million lives worldwide by the time that the case was being heard.  It made mandatory the use of vaccines that, according to the Arbitrator, had proven to be safe and effective at combatting not only the transmission of the virus, but also at providing significantly greater protection from serious illness, hospitalization, and death from COVID-19. Although Arbitrator Wright commented that it was unquestionably extraordinary for an employer to enact a workplace rule or policy that impacted an employee’s right to privacy and bodily integrity, he concluded that there was also no dispute that the global COVID-19 pandemic was an extraordinary health challenge.
• The Company was statutorily required by the Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of the workers.
• The bargaining unit employees were required to attend the workplace to do their jobs; none of them worked remotely and none of them worked entirely outside. Some of the employees also had to interact with external workers and customers, many of whom had their own vaccination policies.
• Two employees at the Company had died from COVID-19 and another 870 employees had tested positive for COVID-19 at some point during the pandemic (224 of those cases arose at the Company’s Brampton facility, where the bargaining unit that filed the grievance was based).
• The Policy had been clearly communicated and the consequences of not being vaccinated were progressive. These messages were reiterated by email to the workers and non-compliant employees received letters at their homes advising of the potential consequences.
• The Policy contemplated discipline or termination as a possibility, rather than an inevitable consequence of a failure to comply with its terms. In practice, no employee had been subject to discipline for non-compliance although 48 non-compliant bargaining unit employees had been placed on unpaid administrative leave.

The Union had also argued that the Policy was unreasonable because less intrusive means (such as enhanced PPE and rapid antigen testing) were sufficient to maintain workplace health and safety. Arbitrator Wright rejected this argument and held that, in addition to the bargaining unit employees not being able to work from home, the evidence suggested that a combined vaccination and testing regime failed to keep the workplace safe: the rate of infections had significantly increased over the course of the pandemic with the advent of the Delta and Omicron variants, with 13% of the Company’s national workforce testing positive for COVID-19 in January 2022 despite the other COVID-19 safety protocols that the Company had implemented.

Key Action Points for Human Resources and In-house Counsel

Similar to previous vaccine policy decisions, Arbitrator Wright’s award confirms that the context of the specific workplace is most important when assessing the enforceability of a mandatory vaccination policy. The decision provides helpful and detailed guidance regarding the factors that adjudicators will consider when assessing the reasonableness and enforceability of vaccination policies, especially with respect to those policies that contain more drastic consequences, such as placing employees on unpaid leaves of absence and the possibility of discipline up to and including termination of employment. The decision also confirms that vaccination policies are more likely to be reasonable for employers whose operations cannot be restructured for remote work or are subject to external vaccination requirements.