Arbitrator Finds Part of LTC Homes’ Mandatory Vaccination Policy Violated Collective Agreement
Date: February 9, 2022
On February 7, 2022, Arbitrator Misra issued her decision in Chartwell Housing REIT (The Westmount, The Wynfield, The Woodhaven And The Waterford) and Healthcare, Office And Professional Employees Union, Local 2220 in which she found that the termination consequences of a long-term care home employer’s mandatory vaccination policy violated the collective agreement.
In late summer 2021, a group of long-term care home employers announced a mandatory vaccination policy (Policy) pursuant to which employees who were not fully vaccinated by October 12 would be placed on an unpaid leave of absence, absent any accommodations required under the Human Rights Code. A number of those employers, including the employer in this decision (Employer), added a termination of employment option as well. On November 1, the Ontario Minister of Long-Term Care issued a Directive requiring that as of November 15, no employees could attend at long-term care homes to work unless fully vaccinated. The Minister’s Directive did not require termination of employment.
As per its Policy, the Employer initially placed non-compliant employees (i.e. employees who were not fully vaccinated and were not requiring accommodation under the Human Rights Code) on an unpaid leave of absence on or about October 12. After warnings had been given to the employees about the consequences of non-compliance, their employment was terminated for just cause on or about December 13.
The Union grieved.
Summary of the Decision
- The applicable Collective Agreement contained unique provisions requiring the Employer to discuss and obtain the agreement of the Union to modifications to “existing rights, privileges, benefits, practices and working conditions.” The Arbitrator held that the Employer did not satisfy these requirements and, accordingly, the Policy’s option of terminating the employment of non-compliant (not fully vaccinated) employees was a violation of the Collective Agreement.
- The Arbitrator interpreted the specific wording of the Employer’s Policy, together with the broad-based terminations that were made pursuant to the Policy, as creating what amounted to a specific “discharge penalty” for non-compliant employees, which she found to, in effect, end-run the just cause requirements of the Collective Agreement. Accordingly, the Arbitrator held that the Policy’s termination of employment option was an unreasonable workplace rule and inconsistent with the Collective Agreement. She therefore struck the termination option from the Policy.
However, the rest of the Policy was upheld as reasonable and consistent with the Collective Agreement. Indeed, this was not disputed by the Union in the context of the Minister’s Directive that employees are not entitled to attend at a long-term care home to perform work unless fully vaccinated.
Further, the Arbitrator emphasized that her decision turned on the specific provisions of the Collective Agreement and on her finding that the Policy contained what amounted to a specific and automatic “discharge penalty.” The Arbitrator held:
243. Despite my findings above, it is important to state that this decision should not be taken by those employees who choose not to get fully vaccinated as indicating that the Employer would never be able to terminate their employment for non-compliance with the policy in question, or indeed any reasonable policy. It is only the automatic application of this policy as it respects discharge that has been found to be unreasonable. Employees must understand that even if their Union and the Employer are unable to reach agreement pursuant to Art. 18.5, the Employer continues to have its Management Right under the collective agreement to terminate an employee for just cause. Hence, employees who remain non-compliant with the policy should not think that they are protected forever from the possibility of being dismissed, as the Employer may at some point do so if it feels it can establish that it has just cause for termination of any particular employee. No employer has to leave a non-compliant employee on a leave of absence indefinitely. At some point, and subject to the Employer warning employees of the possibility of termination, and having considered other factors, it will likely have just cause to terminate the employment of such an employee. [emphasis added]
Employers will want to review and assess their own COVID-19-related policies and practices in the context of this decision and the growing body of case law which consider mandatory vaccination policies.
For more information about these cases, or for assistance with any legal matters related to COVID-19, please contact your regular Hicks Morley lawyer.
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