In Coca Cola Canada Bottling Inc. and Teamsters Local 213, a decision released on July 11, 2022, Arbitrator Noonan found that Coca Cola’s national mandatory vaccination policy (“the Policy”) struck a reasonable balance between the employer’s interests and the rights of the employees covered by it.
This British Columbia decision confirms the general approach of arbitrators in upholding mandatory vaccination policies, and follows a decision in March 2022 where an Ontario arbitrator also found the Policy to be reasonable.
Background
COVID-19 had a significant and devastating impact on Coca Cola’s operations. Throughout the course of the pandemic, Coca Cola had experienced major outbreaks among workers in a number of their facilities, leading to both full and partial shutdowns. Two employees working in a Calgary facility had died of COVID-19.
On October 26, 2021, Coca Cola instituted the Policy as one of their critical control measures against COVID-19. The Policy required proof of fully vaccinated status from all employees who had not been granted an accommodation. It stated that violation of the Policy may lead to discipline, such as suspension without pay, up to and including termination. The Union objected to the Policy, claiming it was an unreasonable exercise of management rights.
Precautionary Approach Approved in Pandemic Times
Due to the evolving circumstances of the pandemic, this decision confirms that it is appropriate for employers to err on the side of caution when developing health and safety policies. Specifically, employers are not required to wait until further negative consequences of COVID-19 occur before implementing a COVID-19 mandatory vaccination policy. Arbitrator Noonan affirmed this precautionary approach, finding the majority of COVID-19 mandatory vaccine policy cases that were referred to him as part of argument “determined that the need for such a policy outweighs the harmful impact on those employees who choose not to be vaccinated.”
Experts Preferred over Internet Research
This decision also confirms that in a time of scientific uncertainty, it is reasonable for employers to rely upon / the scientific information provided by public health officials. Arbitrator Noonan noted that “the best evidence is the statements and orders made by proper authorities such as the Provincial Health Officer” when there is no better scientific evidence before an employer when such a policy is enacted. It is not incumbent on the employer to hire an independent expert witness when implementing policy.
The expert authorities proffered at hearing were strongly preferred over anecdotal evidence and self-directed online research. The arbitrator found the evidence of the Union witness, a Coca Cola employee who chose not to be vaccinated, to be of little or no value. That witness testified that “Bill Gates has stated numerous times that the vaccine is ineffective,” and that he preferred this information to the advice of the Provincial Health Officer because Bill Gates is “the smartest guy.” Arbitrator Noonan addressed the reliability of this testimony, stating “there is no doubt that the internet is a rich source of articles that may range from crackpot to scientifically valid, views that are supported by facts and others in which “facts” are easily manufactured.” Ultimately, the arbitrator found the best evidence was that vaccination remains the primary safeguard against the spread and impact of COVID-19.
Takeaways for Employers
This decision confirms that British Columbia employers can reasonably rely upon the advice of the relevant public health authorities while implementing precautionary COVID-19 health and safety policies.
There are also a few key distinctions with the Coca Cola Policy that are notable for employers considering their own mandatory vaccination policies. First, given the nature of their work, none of the unionized Coca Cola staff could work from home. Arbitrator Noonan noted that if the Policy applied to an employee who only worked from home and did not interact with other employees, it may be found to be unreasonable on that basis. Second, termination and discipline were not inevitable consequences of the Policy. The arbitrator noted that if discipline or termination was an automatic response to an employee’s failure to become fully vaccinated, the outcome of the decision might be different.
For more information, contact Chris Leenheer.
