Dialogue with employee before deciding on accommodation not necessary in federal jurisdiction
A Canadian airline met its duty to accommodate when it determined that it couldn’t find work for an unvaccinated pilot during the pandemic and placed him on an unpaid leave of absence, an arbitrator has ruled.
Swoop is a Canadian low-cost airline owned by airline WestJet. When the COVID-19 pandemic hit, Swoop suffered a significant downturn in business along with the rest of the aviation industry.
When vaccines became widely available in 2021, the federal government established a policy requiring employees in the federally regulated transportation sectors to be vaccinated by the end of October 2021. At the same time, travellers departing from Canadian airports would be required to be fully vaccinated.
In response to the federal government’s policy, Swoop implemented a mandatory vaccination policy on Oct. 16. It required employees to be vaccinated against COVID-19 and to provide their vaccination status. Employees who failed to do so would be “subject to discipline up to and including termination of employment for cause.”
The vaccination policy also indicated that Swoop would accommodate employees as necessary under the Canadian Human Rights Act.
Vaccination leave of absence
Around the time the policy was implemented, Swoop, WestJet, and the pilots’ union established a process for pilots who didn’t want to get vaccinated to apply for a leave of absence. Only four pilots would be approved for this type of leave and those seeking accommodation would use a separate process.
Swoop’s process for any employees requesting accommodation involved a review by several team members to determine the appropriate accommodation. The process did not directly involve the employees, as there was a high volume of accommodation work during the pandemic and there had been aggressive behaviour from some individuals wanting accommodation.
The worker was a pilot with Swoop who didn’t want to get vaccinated because of sincerely held religious beliefs. In September 2021 he completed an attestation that he would not be vaccinated by the deadline. He indicated that he wanted to go on a six-month leave of absence.
Swoop initially placed the worker on an unpaid leave effective Nov. 1, for a failure to vaccinate. He received a letter under the policy advising that he might be terminated for cause if he didn’t become fully vaccinated or obtain an approved exemption by Dec. 1. It also informed the worker that he was eligible for a vaccine leave of absence as agreed to by the union and the airlines.
An Ontario arbitrator determined that a vaccination policy that didn’t account for the changing circumstances of the pandemic was unreasonable.
Applied for religious exemption
Swoop approved the worker for the vaccine leave of absence on Nov. 12. The worker then applied for an exemption from the vaccination policy based on religious grounds.
Swoop approved the religious exemption, but the airline determined that the only appropriate accommodation was to keep the worker on an unpaid leave of absence in order to protect the health and safety of employees and travellers.
The worker requested accommodation and said that he could wear a mask, or submit to COVID-19 testing in order to continue to fly as a pilot. He was also willing to perform modified duties with temporary reduced wages if necessary.
However, Swoop determined that alternate work arrangements would require the worker to come into contact with vaccinated employees at the Swoop workplace, which was not appropriate for employee health and safety. It told the worker that he would remain on vaccination leave and then transition to accommodation leave until July 11, with a reassessment of his accommodation at least every 90 days.
A mandatory vaccination policy for remote workers was reasonable given the possibility that they could come into the physical workplace, a New Brunswick arbitrator ruled.
Dispute over accommodation
The pilots’ union filed a grievance, arguing that accommodation should provide a worker with the ability to continue work while respecting their human rights, and that Swoop did not fulfill its duty to accommodate by not engaging in a dialogue with the worker about available accommodation options.
In June 2022, federal vaccination requirements were lifted and Swoop suspended its vaccination policy. The airline returned the worker to active duty on July 11.
The arbitrator noted that an employer may justify a discriminatory standard if it could show that it adopted the standard for a purpose rationally connected to the job, it adopted the standard in an honest and good-faith belief that it was necessary, and the standard was reasonably necessary to accomplish the legitimate work-related purpose. The employer must also prove that it was impossible to accommodate the employee without imposing undue hardship on the employer.
The arbitrator found that the vaccination policy appeared neutral because it applied to all employees, but Swoop accepted the worker’s request for accommodation and acknowledged that he had a characteristic protected by human rights legislation – religion – and his religious beliefs that prevented him from being vaccinated created a disadvantage. As a result, Swoop had to prove that it adequately accommodated the worker, said the arbitrator.
Circumstances that an employer must accommodate are changing with more remote and hybrid work, according to an employment lawyer.
The worker made it clear in his request that his preferred accommodation was to continue flying as a pilot with regular testing for COVID-19, but he was also willing to perform alternate work. The evidence indicated the Swoop assessed the health and safety risk of the worker flying as a pilot or performing other duties, but determined that all were a risk to employee health and safety because of potential contact with other employees.
The worker also pointed to paid work for the health and safety committee as an option, but this involved few hours and would have little value to Swoop. The accommodation process does not require an employee to place an employee into a position that is not productive or of value to the organization, said the arbitrator.
The arbitrator determined that Swoop complied with its substantive duty to accommodate in assessing the options and determining that an unpaid leave of absence was the only reasonable option. The arbitrator noted that Swoop returned the worker to his regular flying duties as soon as the vaccination mandate was lifted.
However, the arbitrator noted that accommodation is a “collaborative multi-party process involving the employee, the employer, and the union.” Although Swoop’s determination that there were no realistic options to keep the worker actively employed was reasonable, the airline failed to involve the worker or the union in the assessment. This was a breach of the procedural duty of accommodation, said the arbitrator.
An employer met its duty to accommodate even though the worker wasn’t happy with the accommodation, the Ontario Human Rights Tribunal ruled.
No separate procedural duty
This breach was not fatal to Swoop’s defense, though, because the Federal Court of Appeal established that there was no independent procedural duty of accommodation in the federal jurisdiction – despite the fact that courts and adjudicators in other jurisdictions recognized that employers had to comply with both the substantive and procedural duty of accommodation, said the arbitrator.
The arbitrator stressed the value of a collaborative approach – noting that Swoop’s HR department being busy and having experienced aggressive behaviour by others didn’t justify not involving the worker in the process – but determined that Swoop met its duty to accommodate.
The grievance was dismissed. See WestJet and ALPA (Unpaid Vaccination Leave of Absence, Re, 2023 CarswellNat 272.