Bottom Line
In two recent arbitral awards, an Employer was found to have reasonably required its truck drivers and operators to be fully vaccinated or be placed on unpaid leave. Arbitrator Hodges held that the Employer was obliged to do all that it could to ensure that its drivers and operators complied with the border crossing regulations between Canada and the United States (the “U.S.”).
Background Facts
In Unifor Local 4209 v. YRC Freight Canada Company (Bakija) (the “First Award”), the union challenged the reasonableness of the Employer’s vaccination policy (the “Policy”) and whether the Employer had the right to implement the Policy. Under the Policy, drivers and owner operators were required to:
- be fully vaccinated against COVID-19 (i.e., have received the second dose of a two-dose vaccine series or one dose of a single-dose vaccine);
- provide a Self-Certification of Vaccination Status to the Employer;
- carry proof of their full COVID-19 vaccination status when travelling; and
- show proof of their full COVID-19 vaccination status to the Employer upon request, and to authorities presiding over U.S. land points of entry or ferry terminals.
Non-compliant employees would be held out of service until such time as they complied with the Policy.
The Policy was implemented after the Governments of Canada and the U.S. imposed COVID-19 vaccination mandates that required truck drivers to be fully vaccinated, and to provide proof of vaccination when crossing the border. Notably, the Employer’s core business involved transporting goods from Canada to the U.S. and vice versa. For this reason, the Employer determined that it was unfeasible to have drivers or operators work solely in Canada if they were non-compliant with the Policy.
Unifor Local 4209 v. YRC Freight Canada Company (Owner Operators and Drivers Grievances) (the “Second Award”) dealt with an individual grievance relating to the Policy’s application. The grievor was placed on unpaid leave for failing to disclose his COVID-19 vaccination status, as required. The grievor alleged that he was fully vaccinated but refused to provide proof of his vaccination status for “privacy reasons”. He also claimed to be concerned about his safety in the U.S. because people were purportedly not wearing masks.
Arbitrator Finds the Policy to Be Reasonable
In the First Award, Arbitrator Hodges upheld the Policy based on the following findings:
- The Policy was reasonably necessary to accomplish the purpose of ensuring the movement of shipments to and from the U.S., and to prevent the risk of employees being denied entry to either the U.S. or Canada.
- The Policy was applied consistently across all bargaining unit members.
- The Policy took appropriate measures to protect the privacy of the affected employees.
- The Employer gave the employees repeated notices of the upcoming deadlines requiring proof of vaccination at the border, as well as information of the consequences for non-compliance.
- The few employees who did not comply with the Policy did not request any medical exemptions. Further, their unvaccinated status was due to reasons of privacy, personal skepticism, and “their own research.”
The Arbitrator also found that employees in the long-haul trucking industry were at a greater risk of contracting and spreading COVID-19, since they performed transient work that put them in regular contact with other employees, customers, third parties, and the public at large.
The Arbitrator dismissed the Union’s policy grievance.
Arbitrator Confirms that Unpaid Leave Is a Reasonable Penalty for Non-Compliance
Arbitrator Hodges also dismissed the grievance in the Second Award.
The Arbitrator found that there was nothing in the parties’ collective agreement that either addressed or prohibited the imposition of the Policy. He also noted that the Employer did not have an obligation to challenge the Governments’ regulations.
There was also no evidence that the Policy was applied to the grievor in an arbitrary, discriminatory, or bad faith manner. To the contrary, the Policy took appropriate measures to protect employees’ privacy while ensuring that they would self-declare proof of vaccination in order to meet the border crossing regulations. These measures were clearly and unequivocally described in the Policy.
Relatedly, the Arbitrator found that the grievor’s testimony was illogical and not credible. For example, the grievor had been driving into the U.S. over nearly two years of the peak of the COVID-19 pandemic without raising his purported concerns about a lack of mask-wearing in the U.S.
The context of the Employer’s workplace was crucial to the Arbitrator’s analysis. Because the Employer’s long haul trucking business was critical to customers, workers, and the public in both the U.S. and Canada, the Employer was obliged to do all that it could to ensure that drivers and owner operators complied with the border crossing regulations. Accordingly, it was reasonable for the Employer to place employees on an unpaid leave if they did not want to comply with the Policy.
The Employer was represented by Filion lawyer Brian MacDonald in both the First and Second Awards.
Check the Box
In grievances that challenge the enforceability of an employer’s vaccination policies, the main issue is typically whether the policy is reasonable. An arbitrator may consider the following factors, among others, when deciding this issue:
- The requirements of the affected employees’ jobs, including whether any government mandates require vaccination in order for the employees to perform work;
- The nature of the employer’s business, including whether its industry or operations are associated with a higher risk of COVID-19 transmission;
- Whether the vaccination policy is consistent with the applicable collective agreement;
- Whether the vaccination policy is being consistently enforced among all employees;
- Whether the employer has sufficiently protected employees’ private medical information;
- Whether the penalty for non-compliance with the policy is proportionate and reasonable; and
- The sufficiency of the notice provided to employees regarding when vaccination requirements come into effect.
Need More Information?
For more information or assistance with employment litigation, contact Michael Lee at mlee@filionlaw.com or your regular lawyer at the firm.