WorkSafe New Brunswick did not breach the collective agreement with its employees when it implemented the province’s COVID vaccination mandate, an arbitrator has ruled.
The Canadian Union of Public Employees (CUPE) Local 1866 and two unvaccinated workers filed grievances over the vaccination policy.
The two workers allege that, because they were working from home, their employer violated the agreement by placing them on unpaid leaves of absence because of their vaccination status.
The pandemic outbreak
On March 19, 2020, New Brunswick declared a state of emergency and issued a mandatory order in response to the COVID-19 threat.
On Aug. 19, 2021, the province announced that, based on a recommendation from public health, “cabinet has agreed to a mandatory vaccination or testing policy for all provincial government employees.”
“While the specific details are still being finalized, this policy, once in place, will require all provincial government employees to be fully vaccinated or submit to regular testing, and to wear a mask at work until they have received both vaccine doses. Vaccination will also be a condition of employment for new hires,” it said in a press release.
The province then adopted a policy that, after Nov. 19, 2021, any employee who was not fully vaccinated and did not have a valid medical exemption would be sent home without pay. On that date, the two unvaccinated grievors were placed on unpaid leave.
When the vaccination requirement was lifted on March 22, 2022, the two grievors were invited back to work.
The work from home issue
Josée Pelletier, the executive director of human resources at WorkSafe NB, testified that employees who were assigned to work remotely during the pandemic were told they could — at any time — be called in to work and they needed to be available for such an eventuality.
Remote employees also had passcards and access to their workstations and were allowed to access offices if they wanted. At the time, there was no intention to make work from home permanent. (Though Pelletier did say the agency is now considering that option.)
The arbitrator acknowledged the unvaccinated workers “were faced with a difficult choice.”
“They apparently hold strong beliefs about the safety of the vaccine, and it is not my role to question those beliefs. However, in the extraordinary circumstances of the pandemic, as it was known in the fall of 2021, implementing the policy was a reasonable decision,” the arbitrator said.
While the policy allowed for a medical exemption, neither grievors presented any evidence that their refusal to be vaccinated was because of a documented medical condition.
The collective agreement issue
CUPE’s broad argument, that the employer violated the collective agreement by implementing the province’s mandate, did not find a sympathetic ear from the arbitrator.
The reasoning was quite simple: First, there was nothing in the collective agreement that prevented the employer from implementing a “mandatory vaccination policy.”
But, even if it did, it could not have been enforced, the arbitrator ruled. That’s because article 10 of the agreement states:
“Nothing in this agreement shall be construed to require the Employer to do anything contrary to any instruction, direction or regulation given or made on behalf of the Government of the Province of New Brunswick in the interest of the health, safety or security of the people of the Province.”
The arbitrator summed it up this way: The “mandatory vaccination policy” was reflective of the knowledge and the situation that existed at the time it was implemented.
“Some might say that “hindsight is always 20/20” meaning that it’s easier to analyze and evaluate a situation when we’re looking back on it, than when we’re in the present moment,” it said. “While this may be true in some cases, it is also important to remember that hindsight is not always accurate. In fact, sometimes our view of the past can be distorted by our current understanding of the situation.”
The three grievances were dismissed.
For more information, see Canadian Union of Public Employees, Local 1866 v Worksafe New Brunswick, 2023 CanLII 1 (NB LA).