CPR worker chose to not work by complying; vaccination required for railway workers
An arbitrator from the Canadian Railway Office of Arbitration and Dispute Resolution has dismissed a railway worker’s allegation that putting him on unpaid administrative leave for refusing to attest to his vaccination status was constructive dismissal and discrimination.
The worker was a conductor for Canadian Pacific Kansas City Railway (CPR) based in Chapleau, Ont. He was hired in 2018.
On Oct. 29, 2021, the director general for rail safety with Transport Canada issued a ministerial order requiring railway companies to take certain measures in response to the global pandemic. The order required railway employees to receive a first dose of COVID-19 vaccine by Nov. 15 and be fully vaccinated by Jan. 24, 2022, unless they had specific medical or religious exemptions.
The order also required that railways place unvaccinated employees without an exemption to be placed on unpaid administrative leave. Railways had to follow the order or implement their own vaccination policy.
Vaccination policy
On Oct. 30, 2021, CPR implemented its own vaccination policy that included the terms of the ministerial order and it was amended as the order was amended.
On Nov. 8, the worker informed CPR that he would not be disclosing his vaccination status. He didn’t have any medical or religious grounds, he just said that he was “under no legal obligation to disclose… private protected information.” He applied for an exemption on the basis that it was “an unlawful request for information” but CPR rejected it.
On Nov. 16, CPR reached out to the worker because he hadn’t attested to his vaccination status and told him that if he didn’t comply within one week, he “may” be subject to “sanctions up to and including unpaid administrative leave, discipline, and termination of employment.” The company went on to say that if he wasn’t fully vaccinated by the Jan. 24, 2022, deadline, he would be placed on unpaid administrative lead and could be subject to further discipline.
The worker didn’t provide any attestation of his vaccination status by Jan. 24, 2022. On Feb. 3, he repeated his reasons for not doing so.
Unpaid administrative leave
CPR made two more inquiries as to whether the worker intended to update his vaccination status or provide a negative test result, with no response. As a result, the company placed him on unpaid administrative leave on April 5 for noncompliance with the ministerial order.
CPR had difficulty with complying with the ministerial order due various events causing staffing shortages, to it developed ways to keep certain essential workers working even if they weren’t vaccinated. It advised Transport Canada that it would place such employees on leave as soon as reasonably possible.
The worker returned to work in July 2022 after the ministerial order was repealed. However, the union filed a grievance over the worker’s unpaid leave, arguing that it constituted constructive dismissal. It also contended that the leave was disciplinary and CPR was required by the collective agreement to conduct an investigation before imposing discipline. In addition, the union argued that the worker was discriminated against because of his belief in not disclosing his personal medical information.
The arbitrator noted that CPR’s vaccination policy was developed to comply with the ministerial order and was not a “unilateral exercise of management rights.” As a result, it wasn’t subject to the commonly used KVP test to determine the reasonableness of unionized employer policies, the arbitrator said.
Personal choice not protected ground
As for accommodation, the union had to establish that the worker had a protected ground under human rights legislation and experienced an adverse impact. However, in this case there was no protected ground evident that would protect someone from the release of medical information if they felt the request for it was illegal. It was the worker’s choice to refuse to attest to his vaccination status, said the arbitrator.
The arbitrator pointed out that the ministerial order required railway companies to respect the Privacy Act and the Personal Information Protection and Electronic Documents Act in collecting vaccination data on employees, including ensuring that any personal information was accessed on a “need to know basis.” This provided an appropriate balance between the interested of employees and the employer’s need to have vaccination information in the context of the “unprecedented worldwide global pandemic of COVID-19,” said the arbitrator.
The arbitrator also found that placing the worker on unpaid administrative leave was not constructive dismissal, as there was a path to the worker continuing to work but the worker made a personal choice not to be vaccinated under a CPR policy that was a reasonable response to the pandemic.
In addition, the leave was the result of a non-culpable choice made by the worker with no fault, so it wasn’t disciplinary and didn’t trigger a right to an investigation – the collective agreement’s investigation requirement was only triggered by an allegation of culpable misconduct, said the arbitrator, noting that the ministerial order specifically called for administrative leave in order to differentiate it from a disciplinary suspension.
“The [worker] took a stance based on an unprotected ground related to his personal belief about the legality of the request,” said the arbitrator. “He was not terminated by the company – which would be a disciplinary response – but rather was allowed to return when his stance no longer conflicted with his employment.”
The arbitrator also found that the financial impact of the unpaid leave did not make it disciplinary, as it was again related to the worker’s unprotected choice to not keep working with a vaccination. The grievance was dismissed. See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (Rousseau), Re, 2024 CarswellNat 249.
