An arbitrator has concluded that Purolator’s COVID-19 vaccine mandate became unreasonable when it extended beyond June 2022, and he criticized the company for this “poor decision.”
“Some of the considerations listed as favourable to the continuance of the mandate had nothing to do with enhanced workplace safety but addressed concerns such as possible employee resentment and possibly being seen to acknowledge they were wrong to impose a mandate in the first place,” said arbitrator Nicholas Glass in the ruling.
The company’s Safer Workplaces Policy (SWP) was implemented during the global pandemic on Sept. 15, 2021. It mandated vaccinations for all employees as a condition of accessing Purolator workplaces, with a compliance deadline set around Dec. 25, 2021. The SWP went into full force and effect on Jan. 10, 2022.
A number of employees in the union’s bargaining unit declined to be vaccinated. Some workers were placed on unpaid leaves of absences. A number of them were called upon by Purolator to re-attest their vaccination status by Nov. 16, 2022. Some failed to do so and were advised shortly after that their employment relationship with Purolator was “consequently administratively terminated effective immediately.”
As a result, a number of grievances were filed by Teamsters Local Union No. 31 on behalf of the workers in British Columbia.
“All the grievances complained that the grievors were improperly terminated or placed on involuntary unpaid leaves of absence,” the arbitrator said. “Owner operators claimed that they were improperly prevented from assigning their vaccinated relief drivers to cover their routes. One owner operator, (DM), claimed he was improperly discharged.”
The SWP was suspended by Purolator on April 30, 2023.
The arbitrator identified four main reasons Purolator gave to support or justify the banning of unvaccinated workers.
- Allowing unvaccinated workers into the workplace endangered other workers already there because they are more likely to be infected and then pass it on to other workers.
- Third-party and customer requirements for Purolator employees — especially couriers attending their premises — to be vaccinated render the policy operationally necessary.
- Vaccination provides protection against serious illness if infected, so unvaccinated workers bring with them into the workplace an increased risk (for them) of serious illness.
- Unvaccinated workers are more infectious once infected than vaccinated workers.
The arbitrator’s view of Purolator’s reasons
The arbitrator then ran through the company’s reasons.
Prevailing medical opinion and vaccine effectiveness against Omicron: Initially, the medical consensus was that unvaccinated workers posed a risk in the workplace, supporting the SWP’s reasonableness, the arbitrator said. This view was valid until approximately spring 2022, when it became clear that vaccine protection against the Omicron variant was less effective and waned faster.
Third-party requirements controversy: The union strongly contested the second reason for the SWP, arguing that the evidence about third-party vaccination requirements was hearsay and unreliable. Despite the questionable strength of this evidence, it was deemed sufficient to uphold the policy’s reasonableness when implemented.
Workplace safety risk assessment: The third reason, concerning the medical evidence about workplace safety risks, was critically analyzed. It was concluded that allowing unvaccinated workers did not significantly increase the risk of serious illness due to infection for themselves or vaccinated workers. This factor alone was not sufficient to justify the vaccine mandate, the arbitrator said.
Limitations in infectiousness data: The fourth reason, based on studies about infectiousness among vaccinated and unvaccinated individuals, was found to be inconclusive. The data came from small, specialized samples and faced measurement challenges, the arbitrator said. Meta-studies showed similar results for both groups concerning the Omicron variant, contradicting a specific study focused on by the employer. Therefore, this reason alone was not sufficient to justify the vaccine mandate.
Chronology, changing circumstances
By the spring of 2022, the prevailing medical opinion indicated that a two-dose COVID-19 vaccination was largely ineffective against the Omicron variant after 25 weeks, the arbitrator noted.
By June 2022, all vaccinated Purolator employees had surpassed this 25-week mark, rendering them no more immune to Omicron infection than their unvaccinated counterparts, it said. This negated the initial rationale for excluding unvaccinated workers on the grounds of increased infection risk.
By mid-2022, evidence to support ongoing third-party vaccination requirements had not been sufficiently provided by the employer, it said. This, combined with the broader lifting of federal mandates and other restrictions, implied a significant shift in the landscape.
The employer failed to investigate or substantiate the continued existence of these third-party requirements, undermining this justification for the SWP, it said.
“While vaccination continued to provide this desirable public health outcome, banning unvaccinated workers from the workplace after June 2022 did nothing for their safety and contributed nothing to the safety of the others working there,” it said. “It was not a reasonable and proportionate workplace safety measure.”
By late spring 2022, the only remaining potential justification for the SWP was the perceived greater infectiousness of unvaccinated workers, the arbitrator said. However, this reason, even if valid, was insufficient on its own to justify the broad negative impacts of the policy, such as loss of livelihood for unvaccinated workers.
“The employer’s own expert pointed out that it was never listed by public health authorities as a reason to get vaccinated,” the arbitrator said.
By June 2022, the balance of interests had shifted significantly against maintaining the ban on unvaccinated workers. This shift reflected the changing circumstances and diminishing justification for the SWP, it said.
After a 24-day hearing and extensive deliberation, the final verdict was that poor decision-making by management led to unjust consequences for the employees. As a result, all grievances were upheld.
The arbitrator said a “critical fork in the road” was reached with a management discussion in June 2022 that led to a decision to keep the mandate in place. It also said the management had the federal government’s lead to consider.
“On June 14, 2022 the government announced the lifting of their workplace vaccine mandate and published sensible reasons for doing so,” it said. “A poor decision was made, from which bargaining unit members suffered, and they are entitled to be compensated.”
Hourly paid employees and members of the group grievance are to be compensated for lost wages and benefits from July 1, 2022, until their return to work post-May 1, 2023.
Owner operators are entitled to compensation for revenue lost due to the inability to utilize vaccinated relief drivers, with the specifics yet to be determined.
The worker who alleged he was fired, DM, also had his grievance upheld, ensuring full compensation from the day of his dismissal. Additionally, grievances related to administrative non-attestation terminations were upheld, entitling these employees to similar compensation levels.
The arbitrator also reserved jurisdiction for determining the quantum of all grievances and any further matters arising from this decision.
For more information, see Teamsters Local Union No. 31 v Purolator Canada Inc., 2023 CanLII 120937 (CA LA)