CANADA POST WENT TOO FAR ON VAX POLICY: ARBITRATOR
Suspended remote workers without pay
OTTAWA • A labour arbitrator has struck down part of Canada Post’s mandatory COVID-19 vaccine policy for employees, ruling it was unreasonable to suspend staff without pay who worked remotely simply because they did not confirm they were vaccinated.
“Canada Post has not established a compelling workplace health and safety interest in mandating vaccines for employees who worked exclusively remotely, where there was no reasonable prospect that in-person work would be required of them,” arbitrator Michelle Flaherty wrote in her ruling in a case brought by the Union of Postal Communications Employees (UPCE).
Her ruling, issued last week, could provide some indication of the potential outcomes to more sweeping grievances filed in 2021 by the Public Service Alliance of Canada (PSAC) against the government’s mandatory vaccination policy for most of those members who worked remotely. The postal union is part of PSAC, the country’s largest public service union.
Those grievances are still in front of arbitrators.
In each ongoing case, PSAC is requesting the government be forced to compensate unvaccinated members suspended without pay due to what it argues was an “unreasonable” application of the government’s vaccine mandate for public servants.
Canada Post implemented a COVID-19 vaccine mandate in October 2021, roughly at the same time as the rest of the federal public service. The mandate required employees to attest to having two doses of a COVID-19 vaccine or risk being put on unpaid leave.
The ruling says the policy’s purpose was to limit the risk of COVID-19 transmission in the workplace. But Flaherty says that purpose was not met when it was applied to a handful of employees who had no reasonable chance of ever seeing their colleagues at the workplace because they worked entirely remotely.
“These employees had no reasonable prospect of coming into physical contact with the workplace and I cannot conclude that the primary purpose of the (mandatory vaccination practice) was advanced by requiring their vaccination,” she added.
The arbitrator also tossed out Canada Post’s argument that it had an interest in ensuring its employees’ health and safety, namely by getting two COVID-19 vaccine doses.
“In essence, the employer’s position is that it can prescribe activities, including medical procedures like vaccination, simply because this could increase the likelihood an employee will be available to work,” she wrote.
“To the extent that any such interest exists, this is outweighed by the important interests at stake for the employees in question, including their privacy and their financial and economic interest in ongoing paid employment.”
UPCE, which represents 1,500 Canada Post employees in administrative, professional and clerical positions, did not argue against the efficacy of the vaccine to curb COVID-19 transmission. It also did not argue against the vaccine mandate applying to employees who carried out some or all of their work in person.
The ruling says that when the government’s vaccine mandate came into place, 37 UPCE members did not confirm they had received two doses of the COVID vaccine and were suspended without pay. Many subsequently chose to either show they had received two vaccine doses or leave their job, the ruling says.
The union also argued that Canada Post acted “unreasonably” when it suspended without pay unvaccinated employees who could have worked remotely as well as those who worked mostly remotely but occasionally came into the office.
But the arbitrator dismissed those complaints, finding that it is entirely management’s right to decide where employees do their jobs and whether they
THE EMPLOYER IS NOT REQUIRED TO ACCOMMODATE UNVACCINATED EMPLOYEES SO THEY CAN WORK REMOTELY.
do so at the office or remotely.
“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,” she wrote.
Flaherty disagreed with Canada Post’s assertion that it was unable to determine which of UPCE’S unvaccinated employees worked exclusively remotely so as to be exempted from the vaccine mandate.
Spokespeople for PSAC, UPCE and Canada Post either declined to comment or did not respond to National Post requests for comment.
Flaherty’s ruling leaves it up to the parties now to negotiate how they will implement the decision, including whether there will be compensation for employees the arbitrator found were unduly suspended without pay.
The ruling is one of the first that upholds a federal public service union’s grievance against the government’s vaccine mandate for federal bureaucrats. In March, the federal public sector labour board dismissed a complaint by two unvaccinated public servants who argued that the policy was “disguised discipline.”
In March 2022, PSAC announced it was filing additional policy grievances on behalf of “all members” of the federal public service who were put on leave without pay because they did not demonstrate that they had received a COVID-19 vaccine.
That was on top of earlier policy grievances against the mandatory vaccination policy filed on behalf of Treasury Board of Canada and Canada Revenue Agency for employees who worked remotely.
“As the pandemic has evolved and the science has developed, we believe continuing to put unvaccinated employees on leave without pay is a harsh administrative measure that can be considered disciplinary and without just cause,” the union said in a March 2022 statement.