On January 4th, only four days into the New Year 2022, Arbitrator Robert J. Herman released a decision regarding a COVID-19 vaccine policy put in place by the employer Bunge Hamilton Canada, Hamilton, Ontario (“Bunge”). This decision is among the first of many vaccine-related labour decisions we are sure to encounter as 2022 progresses. At issue was whether the COVID-19 vaccine policy violated employee privacy rights.

The vaccine policy in question contained the following requirement: “all employees … are required to be fully vaccinated by January 24, 2022. Attestation of vaccination must be provided by each employee …”

The stated purpose of the vaccine policy was, among other things, to “provide for a safe work environment during the COVID-19 pandemic and safeguard the health and safety of employees or dependent contractors, visitors and vendors.” Employees who did not comply with the policy, either by not being fully vaccinated or by not disclosing their vaccination status, would be prohibited from entering the worksite and would be placed on unpaid leave until a decision was made about whether they would be terminated or not.

 

Confidentiality and Disclosure Under the Policy

According to the vaccine policy, the employer would take all steps necessary to protect the confidentiality of all information submitted due to the policy. It did not require that employees provide any other medical information in addition to their vaccination status. Employee vaccination status could be shared where required or permitted by law, for instance, to governmental or regulatory authorities. Internally, the information would only be shared on a “need to know” basis.

 

The Union’s Position

In challenging the vaccine policy, the Union asserted that the policy was an unreasonable exercise of management rights by forcing employees to disclose personal health information. Further. the Union argued it is unreasonable to place unvaccinated employees on unpaid leaves of absence or to otherwise discipline them for a failure to become vaccination. On the issue of privacy, the Union argued the policy infringed employees’ rights to keep their confidential medical information private, which they believed to be a breach of the Personal Health Information Protection Act, 2004. Additionally, in their view, there was no reason to believe that the potentially small number of unvaccinated employees could not be accommodated. For these reason, the Union requested that their employees not be required to disclose their vaccine status, that mandatory testing be introduced as an alternative option to mandatory vaccination, and that discipline such as unpaid leave or termination not be permitted under the vaccine policy.

 

Arbitrator’s Decision

Arbitrator Herman began with the following comment on COVID-19:

“The continued presence of COVID-19 presents a serious risk and danger to the health and welfare of the public, to the economy and the education system, and to everyone’s ability to fully enjoy life. Public health and safety measures have not as yet been able to fully control the spread of the virus or its potentially terrible ramifications, and while data about the recently discovered Omicron variant remains limited at this point, the emergence of Omicron may increase the challenges COVID-19 presents for us all.”

It is clear from the beginning that the arbitrator considered the COVID-19 pandemic to be a matter of great important and seriousness.

Ultimately, the arbitrator believed the requirement to disclose vaccination status was reasonable. He based this conclusion on a number of reasons:

  • 1)  It was not clear that the Personal Health Information Protection Act, 2004 would have prevented the disclosure of an employee’s vaccination status;
  • 2)  Management is generally permitted to establish rules that require the production of employees’ medical information if necessary to protect the health and welfare of other employees;
  • 3)  The intrusion upon an employee’s privacy with respect to the disclosure of personal health information is fairly minimal due to the policy’s terms, which requires only that employees disclose their vaccination status and no other personal health information;
  • 4)  Employees are given a reasonable period of time to attest to their status; and
  • 5)  The arbitrator would ultimately find the vaccine policy as a whole to be reasonable, and therefore it would inevitably become obvious who was and who was not vaccinated in any event by their mere presence or absence from the worksite.

In summary, Arbitrator Herman stated:

“Any privacy rights in this context are considerably outweighed by the minimal intrusion on such rights and the enormous public health and safety interests at issue. In the result, I am satisfied that the attestation requirement in the Vaccine Policy is reasonable.”

 

Arbitrator Herman’s decision in this case should not be considered the final word on the issue of COVID-19 vaccine policies. As we have seen, some arbitrators have found certain vaccine policies to be unreasonable. Note, however, that Arbitrator Herman found reason to distinguish the current case from earlier decisions which found vaccine policies unreasonable. The ultimate answer to each challenge of a vaccine policy will likely vary on the facts of each particular case.