'It's reasonable for an employer to build in flexibility without being overturned for ambiguity'
An Ontario arbitrator has dismissed a challenge to a vaccination policy on the grounds that the consequences for non-compliance were unclear and unreasonable.
What helped the policy was that no unreasonable consequences were seriously contemplated, according to one employment lawyer.
“It's reasonableness, not perfection, and consistent application because the policy will be judged not just on its words, but on the follow-through,” says Sharaf Sultan, principal of Sultan Lawyers in Toronto. “The conclusion ultimately was that this policy was reasonable and it was consistently applied in terms of following through and requiring people to be vaccinated, whether or not there were some temporary exemptions.”
Mandatory vaccination
Coca-Cola Canada Bottling operates a distribution centre for beverages and soft drinks in Barrie, ON. The facility involves warehouse employees working closely with each other and drivers interacting closely with other people at customer locations.
During the pandemic, Coca-Cola implemented safety measures including a COVID screening app, a mask requirement for employees, occasional temperature checks, fobs that allowed identification of close contact with infected employees, and decreased capacity in shared spaces.
On Oct. 26, 2021, Coca-Cola issued a mandatory COVID-19 vaccination policy for its facilities across Canada. The policy required all employees to get a first dose of an approved vaccine by Dec. 1 and a second dose by Jan. 1, 2022, unless accommodation was granted.
The policy included a provision that it would be reviewed by April 1, 2022, and at least every three months after that.
“From the Coca-Cola perspective, I think they were doing it based on ‘Let's see how this plays out,’” says Sultan. “So it's not unreasonable because it's based on science and their ultimate aim is to maintain safety – that was the underlying rationale why it was still clear, even though it really is unclear as to what's going to happen in six months.”
On the day the policy was issued, managers at the Barrie distribution centre held crew talks with employees to explain it. The next day, the company sent emails to all employees and posted the policy in the workplace.
The policy stated that non-compliance “may lead to discipline, such as suspension without pay, up to and including termination for cause,” subject to human rights issues and collective agreements.
Coca-Cola continued to hold crew talks about the policy in October and November.
An Ontario arbitrator differentiated between a mandated action and the economic consequences of a free choice when it dismissed a charter challenge to a vaccination policy.
Uncertainty over discipline
The union filed a grievance on Nov. 3, alleging that the policy was not clear about whether unvaccinated employees would be permitted to work after Jan. 1, 2022, be disciplined or terminated, or be put on unpaid leave.
In early December, Coca-Cola advised employees that on Jan. 3, 2022, unvaccinated employees would be required to wear face shields over their masks and on Jan. 17 they would submit to mandatory testing. Ongoing failure to comply with the vaccination policy would have “consequences such as being subject to additional protocols and rules, including leave without pay, and the possibility of significant discipline up to and including… termination.”
A few days later, unvaccinated employees were sent a letter reiterating the possible consequences.
When the calendar turned to January, unvaccinated employees were allowed to work with face shields and regular testing.
However, on Jan. 12, Coca-Cola announced that employees who hadn’t received at least one shot would be placed on unpaid leave as of Jan. 31. The leave would be considered administrative, not disciplinary, but employees were again warned of possible further consequences.
Legislative protection of health information doesn’t apply to vaccination status, says the Ontario Labour Relations Board.
On Jan. 31, three unvaccinated employees at the Barrie facility were placed on an indefinite administrative leave of absence.
Read more: How does administrative leave work in Canada?
Previous decision misinterpreted data
The union argued that the unpaid leaves of absence accomplished the goal of protecting the safety of employees and the public, so it was unreasonable to threaten to impose any discipline. It also referred to the arbitration decision FCA Canada Inc. and Unifor, Locals 195, 444, 1285, 2022 CanLII 52913, which found a vaccination policy was unreasonable in the face of studies showing that there was no difference in infection rates between unvaccinated and vaccinated individuals with the Delta and Omicron variants of COVID-19.
The union also argued that employees may have gotten vaccinated thinking they otherwise would not be able to work after Jan. 1, 2022, and then Coca-Cola announced that unvaccinated employees would be able to work with face shields and testing, adding to the confusion.
Coca-Cola provided evidence from an expert in infectious diseases who provided a report stating that vaccines remained effective. He provided data that showed vaccination was a better alternative to other safety measures, even for the Omicron variant. As for the FCA Canada decision, the medical expert pointed out that one study referred to was not specific to the Omicron variant and another international study did show a material difference – 36 percent – in transmission of the variants between vaccinated and unvaccinated people, which that arbitrator misinterpreted.
The arbitrator found that the policy was clearly communicated to employees through emails and crew talks, and unvaccinated employees were warned of the potential consequences.
An Ontario arbitrator found that FCA Canada’s vaccination policy was not reasonable in the face of new COVID-19 variants.
Policies challenged on clarity
Sultan says that once there was a sense that vaccination policies would be backed up by science, unions started attacking them from a different angle – such as whether they are clear and unequivocal, one of the reasonableness requirements under the KVP test for unilaterally introduced policies. And in this case, Coca-Cola passed.
“What I think the employer did well was draft a policy that was reasonably clear and they also provided clarifications in follow-up communications,” says Sultan. “The arbitrator didn't accept the argument that just because the policy wasn't clearly stating that in every case somebody would be put on an unpaid leave and it contemplated other things, it was not a problem because it allowed for flexibility.”
“A policy doesn't need to be drafted where it's rigid – flexibility is good and I think one of the takeaways is that it's not perfection, it's reasonableness,” he adds. “It's reasonable for an employer to build in flexibility without being overturned for the ambiguity.”
Although it was possible an employee could have gotten vaccinated in the belief that they needed it to work after Jan. 1, it didn’t matter because that employee would have had to be vaccinated in order to work after Jan. 31 anyway, said the arbitrator.
Sultan understands the union’s argument that the consequences of non-compliance weren’t completely clear, but he reiterates that flexibility helped support the reasonableness of the policy.
“Just because the employer didn't immediately put people on an unpaid leave and tried to work with them, doesn't mean that the policy wasn't clear,” says Sultan. “It was reasonable for the employer to have some level of flexibility to give them the tools to manage [the evolving circumstances].”
Management’s right to make unilateral rules, where there is a collective agreement, is subject to the KVP test.
Evolving circumstances need flexibility
The arbitrator also found that the policy wasn’t unclear or equivocal just because it stated that discipline or termination might result from non-compliance while Coca-Cola was deciding how to handle non-compliance, and the policy also stated that no discipline would automatically follow non-compliance.
The arbitrator noted that a reasonable vaccination policy can’t be enforced through discipline or termination in individual circumstances, but it could be justified in specific circumstances that would have to be assessed if a union challenged it. It was reasonable for Coca-Cola’s policy to include a general warning that discipline was a possibility, said the arbitrator.
The arbitrator found the evidence from the medical expert to be credible and indicative that vaccination was the best option for maintaining the health and safety of employees, and the FCA Canada decision misinterpreted some of the scientific information presented in that case.
The arbitrator determined that it was reasonable to place employees on unpaid leaves if they hadn’t been fully vaccinated and there was a sound basis for Coca-Cola to require vaccination on an ongoing basis through the rise of the Omicron variant. The grievance was dismissed.
Sultan reiterates that flexibility can make a policy reasonable, not inconsistent.
“I think one of the mistakes that employers tend to have with policies is probably consistent application,” he says. “It’s very difficult to consistently apply a policy, particularly when you have a lot of staff – I think that that's basically what [the union was] essentially arguing, that they didn’t see that flexibility as consistent.”
See Coca-Cola Canada Bottling Limited and United Food and Commercial Workers Union Canada, Local 175, 2022 CanLII 83353.
