Purolator’s extension of COVID vaccine mandate beyond June 2022 a ‘poor decision’: Arbitrator

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Purolator’s decision to extend its COVID vaccine mandate beyond June 2022 has been roundly criticized by an arbitrator who deemed it to be a “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 after reviewing a draft memo from management and following a 24-day hearing.

It stemmed from a series of grievances filed by Teamsters Local Union No. 31 on behalf of some unvaccinated workers in British Columbia.

Background

Purolator launched its Safer Workplaces Policy (SWP) — a workplace vaccine mandate — at its operations across Canada on or about Sept. 15, 2021. It required all employees to be vaccinated in order to gain access to Purolator workplaces.

It had a compliance deadline of Dec. 25, 2021, and was in full force and effect on Jan. 10, 2022.

A number of employees in the bargaining unit decided to get vaccinated against COVID-19, which led to the grievances. Workers who didn’t comply were placed on an unpaid leave of absence, and a number of them were called upon by Purolator to confirm their vaccination status by Nov. 16, 2022.

Some workers failed to do so by the deadline and were advised shortly after that their employment relationship with Purolator was “consequently administratively terminated, effective immediately.” Some owner-operators also claimed they were improperly prevented from assigning their vaccinated relief drivers to cover their routes.

Purolator eventually suspended its vaccinate mandate/SWP on April 30, 2023.

The arbitrator’s ruling

The arbitrator examined the justifications presented by Purolator for its SWP, highlighting its four main points.

• Allowing unvaccinated workers into the workplace endangered other workers because they were more likely to be infected and pass it on to others.
• There were requirements from customers for Purolator employees, particularly couriers who came on-site, to be vaccinated.
• Vaccination provided protection against serious illness, so unvaccinated workers carried an increased risk of serious illness for themselves.
• Unvaccinated workers were more infectious once infected than vaccinated workers.

It found that, initially, the medical community supported the notion that unvaccinated workers posed a health risk in the workplace, which supported the SWP. However, by the spring of 2022, the landscape was shifting — and new evidence suggested there was reduced efficacy of vaccines against the Omicron variant.

By that point, medical opinion had evolved to indicate that vaccine effectiveness against Omicron significantly diminished after 25 weeks. By June 2022, all vaccinated employees at Purolator who had received two doses had exceeded this timeframe — meaning it was difficult to make the case that vaccinated workers had any more protection than unvaccinated ones.

The union also challenged the reliability of evidence pertaining to external vaccination requirements, labeling it as hearsay. Despite doubts about the extent of this practice by third parties and customers, it was initially deemed adequate to justify the SWP/mandate by the arbitrator.

Medical data concerning health risks in the workplace was also scrutinized in-depth by the arbitrator. The conclusion was that unvaccinated employees did not substantially heighten the risk of severe illness from infection for themselves or for vaccinated colleagues.

Federal mandates lifted

The arbitrator noted that the federal government had suspended its vaccinate mandate for workers in June 2022 and other mandates and restrictions were being eased.

“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 remaining rationale for the SWP was the purported higher infectiousness of unvaccinated workers. However, even if valid, this reason alone was inadequate to justify the policy’s broad negative impacts, including job loss for unvaccinated employees, it said.

The ruling

Following a 24-day hearing, the ruling concluded that flawed management decisions led to unjust outcomes for employees. Consequently, all grievances were sustained.

The pivotal moment was identified as a management meeting in June 2022, where the decision to continue the mandate was made, despite the federal government lifting its workplace vaccine mandate and providing sound reasons for doing so.

The arbitration ruling reproduced a draft confidential brief on the SWP from Purolator asking, “When, if ever, should Purolator remove its mandatory COVID-19 vaccination requirement for its employees.”

The arbitrator ran through the brief and did not find any of its reasons to be a “reasonable explanation for why Purolator declined to follow the lead of the Federal government in lifting their workplace vaccine mandate.”

“The lack of convincing reasons tends to support the conclusion that the decision to maintain the mandate was not a reasonable decision. By saying that I do not wish to imply that in taking a different view than the Federal government or other employers and health care facilities, the employer’s decision to continue the mandate is automatically established as unreasonable,” it said, but noted that Purolator regarded the imposition of the federal workplace mandate as a “highly significant factor” in its decision to implement the mandate in the first place.

Taken together, they demonstrate a somewhat directionless management response to the evolution of the virus, vaccine science, and a high level of vaccination in the workforce, it said.

Compensation

Hourly employees and group grievance members were awarded compensation for lost wages and benefits from July 1, 2022, until their return to work post-May 1, 2023.

Owner operators are eligible for compensation due to revenue losses from the inability to use vaccinated relief drivers, with specific details pending.

The grievance of one owner-operator who claimed wrongful termination, was upheld, ensuring full compensation from the day of dismissal. Additionally, grievances related to administrative non-attestation terminations were validated, entitling these employees to comparable compensation.

The arbitrator retains jurisdiction for finalizing all grievance compensation and addressing any subsequent issues from this decision.

For more information, see Teamsters Local Union No. 31 v Purolator Canada Inc., 2023 CanLII 120937 (CA LA).