Home Arbitration/Labour Relations Canada Post’s vaccine mandate for ‘exclusively’ remote workers unreasonable: Arbitrator

Canada Post’s vaccine mandate for ‘exclusively’ remote workers unreasonable: Arbitrator

by HR Law Canada

An arbitrator has ruled that a Canada Post policy, which required employees who worked “exclusively” remotely to be fully vaccinated to limit the spread of COVID-19, was unreasonable.

The Union of Postal Communications Employees (UPCE) filed a grievance over the policy. The narrow issue in front of arbitrator Michelle Flaherty was whether it was unreasonable for Canada Post to apply the mandate to the remote employees.

The union contended that the practice’s objective, to limit the spread of COVID-19 in the workplace, did not justify mandating vaccinations for fully remote workers.

During the hearing, the union did not contest the efficacy of vaccines in reducing COVID transmission nor the application of the practice to employees performing core duties in person. Instead, they argued that applying the practice to those who worked remotely was unjustifiable.

The case involved extensive evidence from both parties. The union relied on testimony from its National Labour Relations Advisor Marc Rousseau and five bargaining unit members, while the employer presented four witnesses, including senior managers and a health director.

In her ruling, Flaherty found that Canada Post’s policy was unreasonable when applied to employees who worked “exclusively” remotely. She defined such employees as those who completed all assigned duties remotely with no reasonable prospect of attending work in person.

Flaherty noted that these employees did not meaningfully engage in workplace health and safety interests and obligations. But she also noted that only a “limited” number of UPCE members fell into this category.

Among the union’s witnesses, two met this definition of exclusively remote workers, leading to the partial allowance of the grievance.

“In implementing a mandatory vaccination Practice, it was not an impossible, unfeasible, or unduly burdensome task for the Employer to identify members of the bargaining unit who were working exclusively remotely and who had no reasonable prospect of in-person work,” said Flaherty in the ruling.

“While this might have been an involved task, I am not satisfied that it was an unreasonable or infeasible on. Moreover, any administrative inconvenience to the Employer must be considered in light of the significant impact on the employees in question, who were placed indefinitely on unpaid leaves of absence.”

Flaherty clarified that her ruling did not address the practice’s overall reasonableness or its application to union members who worked partially remotely.

She rejected the part of the grievance that claimed Canada Post acted unreasonably when it placed unvaccinated employees who “could” have done their jobs remotely on unpaid leaves of absence.

“Management rights include the ability to direct where employees perform their work and whether they do so in the workplace or remotely,” said Flaherty.

“Absent an entitlement under human rights legislation, the Employer is not required to accommodate unvaccinated employees so they can work remotely. There is no requirement to adjust an unvaccinated employee’s tasks or to assign parts of their work to other employees. It was not reasonable to expect the Employer to do so.”

COVID had major impact on Canada Post

The number of COVID cases amongst Canada Post employees shows how big of a problem the issue was during the height of the pandemic.

Between March 2020 and late November 2021, about 2,000 workers tested positive and three employees died after contracting the virus.

When the Omicron variant arrived in late November 2021, the situation at Canada Post became even more fluid. Between Nov. 28, 2021, and Jan. 20, 2022, it recorded 2,180 positive cases in its workforce. In 2022, about 14,000 COVID cases were recorded among employees.

This caused widespread staffing and operational challenges as absenteeism soared. Tellingly, in January 2022, the president and CEO of Canada Post wrote to all team leads asking, among other things, that they hold off on any matter involving operations unless it was “mission critical.”

The vaccination mandate

Canada Post initially considered a policy that allowed for rapid antigen testing as an alternative to vaccination. But it abandoned that idea and decided to mandate vaccines for employees, contractors, and visitors.

That decision was informed by public health guidelines; the Prime Minister’s announcement in October 2021 that vaccination would be required across the federal public service and the federally regulated transportation sector; and uncertainty about the supply of rapid antigen testing kits.

It launched the policy in October 2021. Subject to human rights exemptions, it required that all employees not on a leave of absence be vaccinated with two doses of a COVID vaccine and provide an attestation to this effect.

Employees who failed to provide an attestation were placed on an unpaid leave of absence. The practice applied regardless of an employee’s work arrangement, whether working in person, remotely, or a combination of the two.

A total of 37 UCPE members did not attest to being vaccinated with two doses. They were placed on unpaid leave of varying lengths — some were off a short time before getting the two doses while others were off for long periods.

Canada Post suspended the vaccine requirement on July 6, 2022, and affected employees were invited to return to work.

Lessons for Employers and HR Professionals:

  1. Clear Definition of Remote Work: Establish clear criteria for what constitutes remote work, especially during unprecedented situations like a pandemic. This clarity can help in determining policy applicability and avoid potential grievances.
  2. Balancing Health and Privacy Interests: Consider the balance between workplace health and safety interests and employees’ privacy and economic concerns, particularly for those working exclusively remotely. Policies should be sensitive to these competing interests.
  3. Flexibility in Policy Implementation: Recognize the fluid nature of work arrangements during exceptional circumstances. Maintain flexibility in policy implementation to accommodate changing circumstances and individual needs.

For more information, see Union of Postal Communications Employees (PSAC) v Canada Post Corporation, 2024 CanLII 38829 (CA LA).

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