Since the first Ontario labour arbitration award was released in November 2021, a consensus has emerged that mandatory vaccination policies are reasonable in many circumstances. However, none of the prior awards have been decided in the context of a public hospital, and questions have remained about whether and when an employer could terminate an employee for cause for non-compliance with a vaccination policy.
The first arbitration award about a public hospital's vaccination policy has now been released.1 It provides clarity about how these issues will be decided in a public hospital, and when terminations may be upheld. It also provides clarity about whether remote workers in a health care environment should be exempt from vaccination requirements.
The employer in this case was comprised of, among other things, five hospitals, and more than twenty community health-care locations (the "Hospital").
The Hospital implemented a mandatory COVID-19 vaccination policy (the "Policy") to prevent the transmission of COVID-19 among employees and patients. The Policy applied to all staff, including unionized employees, and took effect on September 28, 2021. The Policy required staff to submit proof of receipt of their first dose of a COVID-19 vaccination by October 22, 2021, and proof of their second dose by November 12, 2021. While the Policy stated that to remain fully vaccinated an individual must receive any recommended boosters, the Hospital did not, in fact, require employees to obtain a booster in order to comply with the Policy.
If an employee did not submit proof of a first dose by the deadline or request a medical accommodation, the employee was placed on an unpaid leave of absence. If the employee still did not receive their first dose, they were subject to termination for cause. The time intervals between placing unvaccinated employees on unpaid leaves of absence and their terminations varied from several days to three weeks.
The Union representing roughly 3,000 employees, including Registered Practical Nurses, Clerks, Service Associates, Personal Support Workers, Screeners, and Secretaries, filed two policy grievances and four individual grievances. The Union argued that certain aspects of the vaccination policy were unreasonable and objected to the application of those aspects to the individual grievors.
What Did the Arbitrator Decide?
The arbitrator decided that:
- A two-dose vaccination policy is reasonable: The arbitrator decided that a two-dose treatment continues to materially protect against COVID-19 many months after the second dose despite effectiveness reducing over time.
- Remote workers should not be exempt: The arbitrator noted that employees who worked remotely may come to the Hospital for workshops, training, meetings, or other purposes. An exemption would reduce the employee complement available for redeployment onsite. Allowing unvaccinated employees to continue to work remotely would also materially increase the likelihood that they would get infected, suffer more severe illness, and be unable to work for longer periods.
- Disciplining unvaccinated employees was reasonable: The arbitrator decided discipline, including unpaid leave and ultimately termination, was appropriate for employees who refused to comply with the Policy by becoming vaccinated.
- There should be a longer unpaid leave before termination: The arbitrator decided that employees should have been provided with a period of four (4) weeks' unpaid leave prior to being terminated. In his view, this length of leave would not unduly hamper the Hospital's ability to serve the public and would give employees ample time to consider the consequences of choosing not to be vaccinated.
- Disciplinary/cause terminations were appropriate after four (4) weeks: The arbitrator decided disciplinary/cause terminations were justified four (4) weeks after placing employees on unpaid leave. Indefinite unpaid leaves were not appropriate because they would impede the ability of the Hospital to staff and provide essential medical services to the public. The Hospital had terminated employees earlier than this. Despite that, the arbitrator awarded no remedy because employees placed on unpaid leaves would still have been on those leaves when they would have been terminated four (4) weeks later.
Key Takeaways for Employers
The consensus from prior arbitral awards was that two-dose vaccination policies for in-person work are reasonable. Some vaccination policies that had otherwise been upheld as reasonable by arbitrators had seen their enforcement mechanism found to be unreasonable, particularly if they are automatic discipline or termination for cause penalties.
This award now confirms that a two-dose policy may be reasonable in a hospital. It also confirms that a hospital can use discipline to enforce a policy, and will be justified in terminating for cause following an unpaid leave of absence of an appropriate length. The award also clarifies that remote health care workers should not be automatically exempt from vaccination requirements.
1. Lakeridge Health and CUPE, Local 6364 (26 April 2023) (Ontario) (Herman)
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