Vaccinations on the jobsite: Factors to consider with mandatory vaccination policies

John Hyde
(Submitted Photo)

As mandatory vaccination policies continue to proliferate in Canadian workplaces, arbitrators have begun weighing in on whether such policies are reasonable. Although an arbitrator has yet to rule on a vaccine mandate imposed upon unionized construction workers, important lessons can be learned from recent cases where such policies were implemented in other workplaces.

In order for unionized employers to implement rules that will impact employee rights, such as vaccine mandates, policies must satisfy the following conditions:

• They must not be inconsistent with the collective agreement.
• They must not be “unreasonable.”
• They must be clear and unequivocal.
• They must be brought to the employees’ attention prior to the employer acting upon them.
• If an employee is terminated for breaking the policy, he/she must have been notified ahead of time that they could be discharged for non-compliance.
• The policy must be consistently enforced from the time it is introduced.

Arbitrators will balance the interests of the employer and employee when assessing vaccine mandates. While arbitrators have recognized that an employee’s individual rights are fundamental to a just and democratic society, these rights are not absolute.

In other words, there are circumstances when the rights of the collective group outweigh those of the individual, and the COVID-19 pandemic has proven to be one of those instances. Indeed, while individual employees have rights of privacy and bodily integrity, employees as a collective group also have rights to a safe and healthy workplace.

Arbitrators have also cautioned that the pandemic is fluid and continues to evolve. As a consequence, a workplace vaccination policy that may have been considered “reasonable” or “unreasonable” at one point in time may be looked at very differently at a later point in time. For this reason, construction employers must be adaptable to change.

The impact on employer operations

While vaccination policies are certainly designed with the best of intentions in mind, arbitrators will nevertheless assess the ways in which they impact the employer’s operations when deciding if they are reasonable.

In Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175, the employer operated a processing facility out of two buildings directly across from each another. The two locations were fully integrated, meaning that their operations were intertwined, and employees could be reassigned to work in either building at any time. However, one of the two buildings was located on land leased from the Hamilton Oshawa Port Authority (HOPA), while the other was owned by the employer. When HOPA instituted a mandatory vaccination policy on all of its properties, the employer followed suit, and implemented a vaccine mandate for both buildings.

The union grieved that the employer’s decision was premature, and that they could have simply separated the vaccinated employees from those who were unvaccinated by placing them in different buildings.

In upholding the vaccine mandate as reasonable, the arbitrator focused on how vaccinated and unvaccinated employees could not be separated without causing material changes to the employer’s operations. The employer would lose the ability to assign employees from one building to the other and would incur additional operating costs by limiting the location of certain workers. As well, vaccinated and unvaccinated employees would not be able to interact, thus impeding the integration between the workforce and work sites.

This decision is important in the construction context because it demonstrates that arbitrators will be less inclined to support alternatives to vaccination policies that would result in less effective methods of operation. This is especially important in the construction industry, where a number of essential tasks require multiple crews working on a specific jobsite at the same time.

Navigating third-party mandates

The construction industry is unique, in that a single employer can have workers distributed all throughout the country on various job sites with different rules in place. As a consequence, it is important to note that arbitrators have already discussed how vaccine mandates are to be assessed when employers must assign workers to third-party sites.

In United Food And Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd, the employer supplied security guards to approximately 450 businesses throughout Ontario. The employer introduced a mandatory vaccination policy after the majority of its clients introduced vaccine mandates of their own. The arbitrator focused on this fact, among others, in upholding the employer’s vaccination policy.

Much like a supplier of security guards, a construction employer also assigns its workers to perform various tasks on the properties of others. Thus, a construction employer who adopts a vaccine mandate because the majority of their clients will only allow vaccinated workers on their sites, will likely find support from an arbitrator in upholding such a policy. However, this will largely depend upon the facts of each case.

In Electrical Safety Authority v Power Workers’ Union, the employer was a government agency whose employees conducted inspections as a means of regulating and promoting electrical safety. Much like construction workers, these employees were frequently required to attend third-party sites in order to do their job. While a number of these third-party sites also implemented vaccination policies of their own, many allowed employees to gain access to their premises by providing a negative COVID-19 test. Thus, the arbitrator concluded that a vaccine mandate was not needed to address the employer’s problem, and that a policy that provided a testing alternative was sufficient.

These cases illustrate that construction employers need to diligently consider the rationale behind putting a vaccination policy in place, as an arbitrator will certainly scrutinize their decision in light of the circumstances at play.

The need to guard employee privacy

In implementing workplace vaccination policies, one of the most important concerns for construction employers should be maintaining the privacy of each employee’s personal information. In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, the arbitrator stated that employers are entitled to request the disclosure of an employee’s vaccine status as part of a vaccination mandate, especially when that information is secured and protected from being unnecessarily disclosed.

As well, in the aforementioned Bunge Hamilton Canada case, the employer’s vaccine policy required employees to indicate whether they had been vaccinated, or could not receive vaccination because of an underlying health issue.

The arbitrator provided a number of reasons as to why the employer’s vaccination policy was reasonable in relation to privacy. For one, employers can require employees to provide medical information as a means of protecting the health and safety of other workers. The arbitrator also determined that individuals who were vaccinated were entitled to know if they were working in the vicinity of those who were not. Finally, the arbitrator found that the policy only minimally intruded into the employee’s personal health information.

For these reasons, employers should ensure that they enforce vaccine mandates with employee privacy in mind. An arbitrator will undoubtedly assess their handling of each employee’s confidential medical information, and this analysis will play an important role in determining whether the vaccination policy is upheld.

The bottom line

While construction companies looking to implement mandatory vaccination policies are certainly guided by the best of intentions, they also need to understand that such decisions may be accompanied by legal scrutiny and consequences. For this reason, the importance of obtaining expert legal advice prior to imposing a vaccine mandate in the workplace, cannot be emphasized enough.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.

He also assists clients in providing strategic legal and human resources advice on labour and employment matters arising out of complex mergers, acquisitions and the sale of businesses.

For more information about his firm or how to protect your construction company, please visit www.hydehrlaw.com.