Arbitral jurisprudence concerning mandatory vaccination policies has continued to develop since the first Ontario labour arbitration award was released in November 2021.1
Fasken recently represented a hospital (the "Hospital") in an arbitration involving a mandatory vaccination policy2. In this case, the arbitrator examined whether a grievor, with no previous disciplinary history, could be terminated for cause for non-compliance with the policy.
What Happened?
Like the majority of hospitals across the country, the Hospital announced that it was instituting a mandatory vaccination policy that required all employees be fully vaccinated or apply for an approved human rights exemption by a given deadline. Employees were warned over the course of several months that a failure to comply with the policy could result in discipline up to and including termination.
Unlike the circumstances examined in Lakeridge Health v CUPE, Local 6364, 2023 CanLII 33942 (ON LA) and Central West Local Health Integration Network v Canadian Union of Public Employees, Local 966, 2023 CanLII 58388 (ON LA), the Hospital did not place employees who failed to comply on an unpaid leave of absence. Rather, unvaccinated employees were scheduled for a meeting where they were asked whether they intended to comply with the policy or seek an exemption. If the employee responded that they did not intend to be vaccinated, they were informed that they would be terminated the following week for just cause.
When the grievor chose to remain unvaccinated without requesting an exemption on human rights grounds, the Hospital terminated them for cause. The union brought a grievance alleging the grievor had been unjustly terminated.
In this case, the union did not dispute the reasonableness of the mandatory vaccine policy but rather alleged that the Hospital did not have just cause to terminate the grievor.
What did the Arbitrator Decide?
Discipline: The arbitrator concluded that, given that the vaccination policy was reasonable and the grievor refused to follow it, some discipline was warranted for their failure to comply.
This conclusion parted with another recent arbitration decision which found that non-compliance with a reasonable mandatory vaccination policy could never form grounds for discipline because it engaged an employee's right to withhold consent to provide medical information or undergo a medical procedure.3 The arbitrator in this case distinguished the conclusions reached in the earlier decision by emphasizing the extraordinary circumstances presented by the COVID-19 pandemic, particularly in hospital settings. The arbitrator underscored that, in the context of a pandemic, an employee's individual rights must be balanced against the obligation to safeguard patient and workplace safety:
"We live and work in community with others; we all possess certain individual rights, but we are also bound together by myriad duties and obligations. These competing interests must be balanced against one another. In October of 2021 with the Delta variant of COVID-19 near its height, and with safe and effective vaccines readily available, employees in the hospital sector particularly had a duty to keep one another safe, and to make sure vulnerable patients were not put at higher risk of infection and death."4
While the arbitrator found that some discipline was justified in the circumstances, the grievor in this case did not have sufficient opportunity to reflect on the consequences of her choice because the Hospital did not provide any progressive discipline or a period of unpaid leave. The arbitrator distinguished this case from Quinte Health v Ontario Nurses Association, 2024 CanLII 14991 (ON LA), declining to agree with the union's position that the termination was effectively automatic. While the meetings with employees were cursory, they did elicit sufficient information to ensure that employees were aware of the policy and the consequences for non-compliance.
Remedy: The arbitrator ultimately reinstated the grievor to an unpaid leave of absence and substituted the termination with a 30-day disciplinary suspension. The arbitrator declined to award lost wages from the date of termination given that the Hospital's policy was still in place, the employee remained unvaccinated and the grievor showed no indication that they would have become vaccinated had they been suspended.
The arbitrator also rejected the union's argument that damages should be awarded in lieu of reinstatement and declined to award any severance payments. There was no evidence to support the notion that the employment relationship was irrevocably broken such that reinstatement would not be the appropriate remedy.
Finally, the arbitrator went on to state that he agreed with the line of cases that determined that an employee cannot remain on an unpaid leave indefinitely. Given the fact that the grievor remained unvaccinated and had a 30-day suspension on their record, he found that the grievor's "continuing employment status would appear to be highly precarious to say the least".5
Takeaways
The decision adds to the still-evolving caselaw on mandatory vaccination policies necessitated by the COVID-19 pandemic. Importantly, the decision distinguished recent caselaw that was unfavourable to employers and found that it is appropriate for employees to be disciplined for non-compliance with vaccination policies. While consensus has emerged that vaccination policies are reasonable in many settings, the reasonableness of terminations will still be considered in light of the circumstances at the time and the process that was followed.
Footnotes
1. You can read more in our previous HR Space bulletins: "Arbitrator Upholds Hospital's Vaccination Policy and Cause Terminations" and "Employer's Mandatory COVID-19 Vaccination Policy Deemed Reasonable".
2. London Health Sciences Centre v Unifor Local 27, 2024 CanLII 48714 (ON LA).
3. Humber River Hospital v. Teamsters Local Union No. 419, 2024 CanLII 19827 (ON LA). We note that this decision is being judicially reviewed. Further, another arbitrator made a determination that the Humber River policy was reasonable given the extraordinary circumstances of the pandemic in National Organized Workers Union (NOWU) v Humber River Hospital, 2024 CanLII 52386 (ON LA).
4. London Health Sciences Centre v Unifor Local 27 at para. 49.
5. London Health Sciences Centre v Unifor Local 27 at para. 71.
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