'Applying the practice to exclusively remote workers did not advance its main purpose, which was to limit the risk of COVID transmission in the workplace'
Canada Post was wrong to suspend remote workers during the COVID-19 pandemic for not confirming that they got vaccinated for the disease, an arbitrator recently ruled.
In October 2021, Canada Post mandated that workers provide proof that they have received two doses of a COVID-19 vaccine or risk being put on unpaid leave.
While the rule was key to fighting the spread of COVID-19 in the workplace, the employer should not have extended the mandate to workers who are working strictly remotely, said arbitrator Michelle Flaherty in her ruling issued May 6.
“Applying the practice to exclusively remote workers did not advance its main purpose, which was to limit the risk of COVID transmission in the workplace. There was no meaningful connection between the practice’s objective and the measures imposed on exclusively remote workers,” she said.
“It is not clear that the Employer’s workplace health and safety interests extend to requiring vaccination because this could increase the likelihood that exclusively remote workers (who have no reasonable prospect of in-person work) would be available to do their jobs.”
The employer’s interest in this matter is “significantly outweighed by the employees’ interests in their privacy and in ongoing paid employment,” said Flaherty.
The Union of Postal Communications Employees (UPCE) brought the case to court. A total of 37 UPCE members did not confirm they had received two doses of the COVID-19 vaccine and were suspended without pay, noted the National Post.
In March, an arbitrator concluded that nine Ontario nurses who were fired because they didn’t get two COVID-19 vaccinations should be given their jobs back.
UPCE also argued that the employer “acted unreasonably” when it placed unvaccinated employees who could have done their jobs remotely on unpaid leaves of absence. However, this aspect of the grievance was dismissed.
“Management rights include the ability to direct where employees perform their work and whether they do so in the workplace or remotely,” said the arbitrator.
UPCE’s grievance claimed that unvaccinated employees who could perform all of their duties remotely should have been accommodated with remote work. But this aspect of the grievance is denied.
“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,” explained Flaherty.
Previously, one worker was nearly disqualified from receiving employment insurance (EI) benefits due to their refusal to be vaccinated.
