In a recent arbitration decision, Unifor Local 973 and Coca-Cola Bottling Limited [Coca-Cola Bottling Ltd.], the employer’s mandatory vaccination policy was upheld as reasonable. This decision is significant for employers as it provides insight into the way that decision makers view mandatory vaccination policies in light of many provinces, including Ontario, recently lifting their COVID-19 public health measures.
We have provided a more detailed explanation of the significance of this arbitration decision for employers in a separate blog. We have also written about two other similar decisions upholding mandatory vaccination policies in separate blog posts which can be found here and here.
A summary of the Coca-Cola Bottling Ltd. decision is provided below.
In Coca-Cola Bottling Limited, Coca-Cola the Employer, Coca-Cola, introduced its nationwide COVID-19 mandatory vaccination policy (the “Policy”) on October 27, 2021. The Policy required existing employees to be fully vaccinated with two doses of an approved COVID-19 vaccine by January 1, 2022 unless they were unable to do so for protected human rights reasons, or otherwise face workplace consequences which included the possibility of dismissal from employment.
Following the introduction of the Policy, employees were informed that additional workplace measures would apply to employees to who were not fully vaccinated by the prescribed deadline. Unvaccinated employees would be required to wear face shields over their masks when on-site or in the field, and would subsequently be required to submit to mandatory rapid antigen testing as of January 17, 2022. Shortly after, the Employer announced that as of January 31, 2022, all unvaccinated and partially vaccinated employees would be placed on an indefinite unpaid leave of absence if they refused to be fully vaccinated.
By the end of February 2022, COVID-19 had significantly impacted the Employer and its employees, including the death of two employees due to COVID-19 and full or partial shutdowns of the Employer’s facilities for periods of time due to COVID-19 outbreaks. Since the Policy first came into effect in October 2021, the Employer had placed 48 employees at one of its Ontario facilities on unpaid leaves of absence due to their non-compliance with the Policy. The union subsequently filed several individual grievances on behalf of the employees who were placed on unpaid leaves of absence.
The union challenged the reasonableness of the Employer’s Policy on three grounds:
- that the Policy is unreasonable because there are less intrusive means, such as enhanced personal protective equipment (PPE) and rapid antigen testing, that would be sufficient to keep employees safe at work and allow the Employer to meet its obligations under the OHSA;
- that an employee’s decision to be unvaccinated is almost always based on strongly held personal beliefs that may reflect a political perspective or lifestyle choice; and
- that the Policy puts employees in an untenable situation where they must choose between their livelihood or their bodily integrity and autonomy.
The Employer argued that the Policy was reasonable in the specific context of the COVID-19 pandemic, as it balanced the employees’ right to privacy, bodily integrity, and autonomy with the Employer’s right and obligation to protect the health and safety of the workplace. The Employer also emphasized its progressive approach to imposing workplace consequences for non-compliance with the Policy (e.g., enhanced PPE, rapid antigen testing, and eventually enforcing unpaid leaves of absence).
Whether the Policy is Unreasonable
The Arbitrator concluded that the Policy was reasonable and was not in violation of the collective agreement. In arriving at this conclusion, the Arbitrator emphasized the “extraordinary health challenge” that the COVID-19 pandemic has posed around the world and referred to recent arbitration decisions that spoke to the fluid and dynamic nature of the pandemic. Specifically, the Arbitrator stated that there was a reduced reliability of rapid antigen tests in detecting cases of the Delta and Omicron variants. The Arbitrator stated that COVID-19 vaccines, however, have been proven to be safe and effective at combatting the transmission of the virus.
The Arbitrator considered the impact of the COVID-19 pandemic on the Employer and its employees, as well as the specific circumstances of the workplace where employees were unable to work remotely, and ultimately concluded that the Policy was reasonable.
An Employee’s Decision to not be Vaccinated Is Usually Based on Personal Beliefs
The Arbitrator stated that although it is true that an employee’s decision to not be vaccinated may reflect political perspectives or lifestyle choices, an employee’s personal belief is not enough to override the Employer’s interest under the OHSA to do everything possible to maintain the health and safety of the workplace.
The Policy Puts Employees in an Untenable Situation
The Arbitrator referred to another arbitration decision, Electrical Safety Authority v Power Workers’ Union, in which the arbitrator recognized that although an employee’s interest in privacy and bodily integrity is fundamental, the employer’s interest in protecting the health and safety of other employees was sufficient to justify the mandatory vaccination policy. The Arbitrator in Coca-Cola Bottling Ltd. stated that similarly, the Employer’s interest in maintaining the health and safety of the workplace justified its Policy, especially because employees could not work remotely and were required to be on-site to perform their work.