Say no evidence that alternative measures would have been as effective for health and safety
Maritime Paper Products Limited Partnership (MPP) is a manufacturer of corrugated packaging products with multiple locations in Eastern Canada including Moncton, NB.
On March 23, 2020 – shortly after the COVID-19 pandemic reached Canada – MPP’s parent company, Scotia Investments Limited (SIL), sent a memo to all employees about safety measures being put in place to protect employees from infection. On Nov. 25, COVID-19 cases were rising again, so MPP informed its employees that it would be requiring employees to wear non-medical face masks in the workplace and it would be screening employees for symptoms.
In January 2021, SIL kept its employees up to date on vaccines, announcing that the federal government was distributing two vaccines across Canada. By September, the parent company announced a COVID-19 vaccination policy for all of its employees.
In November, SIL reviewed its vaccination policy as well as provincial public health measures. It informed employees that it would be implementing further measures as of Jan. 1, 2022, requiring unvaccinated employees to test for COVID-19 twice every seven days and provide negative test results before reporting to work.
A short time later, the New Brunswick provincial government advised that vaccination was a key factor in reducing hospitalization rates of COVID-19.
An Ontario arbitrator found that a vaccination policy that didn’t allow for review during the evolving circumstances of the pandemic was unreasonable.
Vaccination and testing requirements
In early January 2022, MPP warned its employees of the new Omicron variant that was spreading in the province – following a similar warning from the provincial government – and announced changes to its vaccination policy. As of Jan. 17, all SIL employees who were not vaccinated would have to test three times every seven days and provide negative result of those tests before reporting to work.
A couple of weeks after the new testing requirement was implemented, SIL announced that it would be moving to a mandatory vaccination policy for everyone on Feb. 15. On that date, unvaccinated employees would be placed on unpaid leave until they provided proof of vaccination. The parent company issued a reminder four days before the mandatory policy came into effect.
On Feb. 14, two unvaccinated workers in the Moncton facility were given letters stating that they had failed to comply with the vaccination policy and would be placed on unpaid leave.
In late February, the union filed grievances on behalf of the two unvaccinated workers, alleging that MPP’s refusal to continue to allow testing instead of vaccination was unreasonable. It suggested alternatives such as having the two workers work alone, wear masks, and take their lunch breaks at the back of the plant to ensure distancing.
A BC arbitrator found a vaccination policy to be reasonable on its face, but the possibility of discipline for noncompliance was not.
Unvaccinated workers returned to work
On March 7, with cases decreasing, SIL announced that unvaccinated employees on unpaid leave in New Brunswick would be returned to work on March 14. Three days later, the New Brunswick government announced that it would lift all COVID-19 measures, also on March 14.
The two MPP workers were returned to work on March 14 after one month of unpaid leave.
By March 28, mandatory vaccination for the public service was no longer required, with the exception of a few areas such as health care.
The arbitrator noted that that traditional test for reasonableness of the unilateral implementation of a policy – established in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd, 1965 CanLII 1009 – applied in this case. The test required the policy in question to not be inconsistent with the collective agreement, not be unreasonable, be clear and unequivocal, and brought to the attention of employees affected. Affected employees must also have been notified that a breach of the rule could result in discharge if discharge was happening, and the company must have consistently enforced the policy from the time of introduction.
The arbitrator found that there was no dispute in this case that the policy was consistent with the collective agreement and it was clear or unequivocal. The communication from SIL and MPPs clearly brought it to the attention of employees and the two employees who were placed on unpaid leave were advised in advance of the impact of them not being vaccinated. In addition, there was no evidence that MPP didn’t enforce the policy consistently, said the arbitrator.
The only concern was the union’s claim that the policy was unreasonable.
Making an occupational health and safety complaint is not the proper route to challenge a workplace vaccination policy, the Ontario Labour Relations Board ruled.
Health and safety obligation
The arbitrator noted that MPP had a legislative obligation to take every reasonable precaution to keep its workforce safe and healthy, including from the global pandemic that had been announced by the World Health Organization. The safety measures taken by SIL and MPP over the course of the pandemic were for this purpose and the union did not challenge any measures until the mandatory vaccination policy, the arbitrator added.
Given the various government announcements and the circumstances in the latter part of 2021 and early 2022, the mandatory vaccination policy was “a reasonable response to the evolving situation respecting COVID-19 and the recognition that the virus was mutating,” said the arbitrator. As a result, the policy on its face was a reasonable balance between the employees’ interest in privacy and bodily integrity and MPP’s interest in maintaining the health and safety of the workforce, the arbitrator said.
The arbitrator found that, while it would have been “a much better practice” to listen to the union’s suggestions and consider them before unilaterally implementing the mandatory vaccination policy, there was no evidence that the union’s alternatives would have been sufficient to protect other employees in the plant, the arbitrator said.
Without specific scientific evidence about the spread of COVID-19 and the plant’s air exchange systems, there was no evidence that any alternative to the mandatory vaccination policy would have achieved the goal of a safe and healthy workplace under the existing pandemic circumstances in New Brunswick, said the arbitrator in ruling that MPP’s policy was reasonable.
See Unifor, Local 882 and Maritime Paper Products Ltd. Partnership (Field), Re, 2022 CanLII 109448.
