Core business was cross-border freight; Canada, US had mandates
A policy requiring owner operators and drivers for a long-haul trucking company to prove they were vaccinated while such requirements were in place for crossing the Canada-US border was reasonable, an arbitrator has ruled.
YRC Freight Canada is a freight carrier based in the US with terminals across North America. Its Canadian operations are federally regulated and the company has collective agreements with its Canadian owner-operators and drivers.
The collective agreements recognize YRC’s exclusive right to manage and direct its business in accordance with its commitments.
Over the course of the COVID-19 pandemic, YRC implemented safety measures to protect employees and, once vaccinations became available, the company encouraged everyone to get vaccinated.
A school board’s vaccination policy didn’t violate the charter, as it didn’t actually mandate anyone to get vaccination, said an Ontario arbitrator.
Vaccination mandates for cross-border travel
On Jan. 15, 2022, the Canadian federal government started requiring all truck drivers entering Canada to be fully vaccinated for COVID-19 and to provide proof of vaccination to cross the border by land without quarantining. This requirement lasted until Sept. 26 of the same year.
One week later, on Jan. 22, the US Department of Homeland Security started requiring all foreign nationals who were required to enter the US as part of their jobs to be fully vaccinated and provide proof of vaccination to cross the border. To date, this requirement has yet to be revoked.
In response to the border vaccination requirements of both governments, YRC unilaterally implemented a Driver and Owner Operator Vaccine Documentation Policy effective Jan. 22. The policy included a self-certification of vaccination status form that required drivers and owner operators to check a box indicating one of the following: they were fully vaccinated (received two doses); they received a second dose less than two weeks earlier; they had an appointment for a second dose; they were not vaccinated but had an appointment for a first dose; they were not vaccinated; or they declined to answer.
The form stated that anyone who declined to answer would be deemed not fully vaccinated.
The policy also required employees to travel with proof of full vaccination, show proof to the company upon request, and produce proof of full vaccination at US land points of entry or ferry terminals. Any driver or owner operator who failed to comply would be held out of service.
An employer’s policy requiring employees to pay for rapid COVID-19 tests rather than disclose their vaccination status was unreasonable, a BC arbitrator ruled.
Exemptions considered
The policy stated that religious and medical exemptions would be considered based on human rights principles, but no requests were made.
Several drivers who didn’t want to get vaccinated asked to drive strictly in Canada, but YRC rejected this as not feasible, since its core business was cross-border freight delivery.
On Jan. 20, YRC sent letters to any drivers and owner operators who hadn’t complied, reminding them that they would be held out of service if they failed to comply. They were held out of service effective Jan. 27. Otherwise, they were not disciplined or discharged.
The unions filed a policy grievance arguing that the policy was unreasonable because it violated employee human rights and privacy. It also argued that YRC didn’t analyze the possibility of using less-intrusive measures, noting that owner operators had crossed the border for two years during the pandemic without incident, and during this time there was no attempt to prioritize vaccines for them as was done for other essential workers.
An employer’s vaccination policy that followed the policy of the federal agency that owned the land upon which it operated was reasonable, an Ontario arbitrator ruled.
Consistently applied
The arbitrator found that the policy applied to all bargaining unit members and drivers required to cross the Canada-US border and it wasn’t enforced in an arbitrary, discriminatory, or bad-faith manner. It was clear and unequivocal and all owner operators were given advance warning of the need for compliance, said the arbitrator, adding that YRC encouraged employees to get vaccinated as soon as it was possible.
The arbitrator also found that the policy was applied consistently and employees were given the opportunity to apply for medical exemptions. The fact that no one applied for such an exemption showed that no one had proof that they needed it, said the arbitrator.
The arbitrator found that YRC’s long-haul trucking business was critical to its customers, the public and all of the company’s employees, so the company had an obligation to do all it could to ensure that its owner operators and drivers complied with border crossing regulations from both Canada and the US. Since most of its business was over the border, it wasn’t feasible to assign a number of employees to Canada-only runs, as it would be undue hardship, said the arbitrator.
The arbitrator determined that the vaccine documentation policy was “reasonably necessary to accomplish the purpose of ensuring the movement of shipments to and from the United States” and it was clear and unequivocal. The grievances were dismissed. See Unifor, Local 4209 v. YRC Freight Canada Company, 2023 CanLII 13807.
