Canada: Arbitrator Confirms Precautionary Approach Appropriate In Times Of Scientific Uncertainty

Previously printed in the LexisNexis Labour Notes Newsletter.

On July 11, 2022, Arbitrator Randy Noonan released his decision in Coca Cola Canada Bottling Inc. -and- Teamsters Local 213, B.C.C.A.A.A. No. 69 (Noonan). It concerned the reasonableness of Coca Cola's mandatory vaccination policy (the "Vaccination Policy"). Although the policy is a national one, the dispute before the arbitrator related to the unionized hourly employees working out of four sites in the Lower Mainland of British Columbia.

Facts

The employer instituted the Vaccination Policy on October 26, 2021. It reviewed the Vaccination Policy on March 31, 2022 but did not make any substantial changes.

The Vaccination Policy mandates that all employees must be fully vaccinated unless the employer has granted them an accommodation based on a protected ground under the B.C. Human Rights Code. The Vaccination Policy states that violation of the policy may lead to discipline up to and including termination of employment.

The union argued that the arbitrator should strike down the Vaccination Policy because it has been inconsistently enforced and is an unreasonable exercise of management rights. With respect to the former argument, the union said that while the Vaccination Policy is supposed to apply to "all employees", the employer does not require certain non-bargaining unit employees to be fully vaccinated if they work exclusively from home. With regard to the latter argument, the union said that a policy requiring an employee to undergo an invasive medical procedure must be struck down unless it is clear that the benefit of such a policy outweighs the "gross invasion" of an employee's privacy and bodily integrity.

Decision

Arbitrator Noonan dismissed the union's grievance and upheld the Vaccination Policy in its entirety.

With respect to the union's allegation regarding inconsistent application of the policy, Arbitrator Noonan held that the employer has consistently required that all employees coming into its head office or any of its facilities must be fully vaccinated. Further, it is consistent with the purposes of the Vaccination Policy for the employer not to require employees who work exclusively from home to be fully vaccinated. Indeed, the arbitrator opined that if the employer applied the Vaccination Policy to a worker who never left home in performing his or her work, the policy could be deemed unreasonable.

With respect to the reasonableness of the policy, while Arbitrator Noonan agreed with the union that one does not forfeit civil rights on becoming an employee, he disagreed that the balancing of interests in the case weighed in favour of an employee's right to privacy and bodily integrity. The arbitrator observed that the best evidence presently available regarding the efficacy of vaccination are the statements and orders made by proper authorities such as the Provincial Health Officer (PHO). The evidence provided by those statements and orders is that vaccination remains the primary safeguard against the spread of COVID-19 variants and serious illness or death for those individuals who contract the disease. In this time of scientific uncertainty, it is reasonable for employers to adopt a precautionary approach and "err on the side of caution". In other words, employers do not have to wait until the negative consequences of COVID-19 are experienced before implementing an appropriate policy to counteract the virus. It is therefore not unreasonable for the employer to implement a policy removing unvaccinated employees from the workplace.

Notably, Arbitrator Noonan did not strike the part of the policy that provides for the possibility of dismissal for violation of the policy (the "Dismissal Provision") because, in his view, "it is possible that a continued refusal to be vaccinated could, at some point, result in ... dismissal". Nonetheless, the arbitrator cautioned that his decision does not suggest that because the possibility of dismissal is included in the policy, dismissal is automatically warranted. Indeed, in his view, if the Dismissal Provision mandated dismissal as the automatic response for a failure to fully vaccinate, his decision might have been different.

Takeaways for Employers

Arbitrator Noonan's decision confirms that in this time of scientific uncertainty, the best evidence regarding the efficacy of vaccinations is the advice of the relevant public health authorities and an employer is entitled to rely on that evidence in taking steps to comply with its obligations to ensure the health and safety of its workers. His decision is also one of many that confirm the appropriateness of the application of the precautionary approach to the balancing of interests exercise.

All of this said, employers that are considering implementing their own mandatory vaccination policies should be alive to a few key matters that contributed to a finding of reasonableness in this case. First, given the nature of their work, none of the unionized employees could work from home. Second, employees who work exclusively from home are not required to be fully vaccinated. Third and finally, dismissal and discipline are not inevitable consequences of the policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.