Arbitrator Addresses Reasonableness of Hospital Vaccination Policy Providing for Termination of Employment


Arbitrator Addresses Reasonableness of Hospital Vaccination Policy Providing for Termination of Employment

Date: April 27, 2023

On April 26, 2023, Arbitrator Robert Herman released his award in Lakeridge Health and CUPE, Local 6364. The award addressed two policy grievances and four individual grievances arising from the hospital’s mandatory COVID-19 vaccination policy. This is the first Ontario arbitration decision involving a hospital that has addressed the reasonableness of a vaccination policy which provides for termination of employment for non-compliance.

Lakeridge Health (the Hospital) introduced the first iteration of its vaccination policy (the Policy) in June 2021. The Policy required employees to attest to their vaccination status, and to take specified protective measures if they were not vaccinated, but did not require that they be vaccinated. In September 2021, following the issuance of Directive #6 by Ontario’s Chief Medical Officer of Health, internal consultation, and in response to the ongoing circumstances surrounding the COVID-19 pandemic, the Hospital made the decision to revise the Policy to provide for mandatory vaccination. Employees were notified on October 1, 2021 that if they were not vaccinated by October 29, 2021 their employment might be terminated.

In accordance with the terms of the Policy, as of October 29, 2021 employees were placed on an unpaid leave of absence. Employees who remained unvaccinated or who did not indicate a willingness to become vaccinated were terminated between November 1, 2021 and November 17, 2021.

CUPE’s initial position was that the Policy was unreasonable in placing unvaccinated employees on unpaid leaves of absence in October 2021, and unreasonable in terminating those employees who remained unvaccinated. The Union changed its position in closing arguments, acknowledging that the Hospital could reasonably have placed unvaccinated employees (who did not work remotely) on unpaid leaves of absence until June 2022, when it should have returned them to active employment.

Arbitrator Herman upheld the Policy as reasonable in almost all respects, including the termination of employees for non-compliance, although he did find that the Hospital should have implemented a four-week leave of absence for all employees prior to terminating their employment. Arbitrator Herman did not order any remedial relief with respect to this issue as he found that employees who were placed on unpaid leaves of absence would still have been on those leaves when they would have been terminated four weeks later.

In reaching his decision, Arbitrator Herman made the following findings:

  • The relevant context to assess the reasonableness of the policy was the “circumstances existing in the months before the issuance of the Policy and those existing when it [was] issued.”
  • When the Policy was issued, “vaccines were the best protective measures against transmission, against becoming infected, and against severe symptoms” and the scientific evidence available to the Hospital at the time was clear that “[t]he protection provided by two doses of a vaccine was significantly greater than any combination of other protective measures, such as masking or RAT’s.”
  • The Policy was reasonable in its application to all employees, including those who worked remotely. Arbitrator Herman found that employees working remotely still might have to come into the Hospital from time to time. He also found that the Hospital “needed to be able to redeploy employees to other work locations and assignments, as needs demanded.”
  • Arbitrator Herman distinguished case law that stood for the principle that employees who refuse or decline to take medicine or vaccinations do not engage in disciplinable conduct. He found that line of cases to have limited application to the COVID-19 pandemic and concluded that the Hospital was justified in treating non-compliance with the Policy as disciplinable misconduct. In making that finding, Arbitrator Herman noted that this was not a “normal scenario” and that the Policy was issued “in the context of a pandemic that had already caused significant numbers of deaths and life-threatening illnesses, both to patients and staff who worked in hospitals, and continued to do so.” Arbitrator Herman also noted that employees were “already required to be vaccinated by the Hospital for numerous diseases” and so vaccinations for COVID-19 would “not be a new Hospital requirement.”
  • Arbitrator Herman found that the Hospital reasonably concluded “that it would likely have far more vacancies to fill if employees were kept on unpaid leaves and not terminated” and that its “ability to fill the resulting vacancies would be materially more difficult if it could only offer potential new employees temporary positions of an indeterminate length.” In reaching this conclusion, he distinguished the present case from the decision of Arbitrator Misra in Chartwell Housing REIT v. Healthcare, Office and Professional Employees Union, Local 2200, UBCJA (Mandato).
  • He also found that the present case was distinguishable from the circumstances addressed in other decisions that have considered the reasonableness of automatic termination as part of a vaccination policy. Arbitrator Herman noted that “[c]ritically, those other cases did not arise in the context of a hospital providing essential, potentially life-saving, health care services to the public during the pandemic, when there were already significant staffing shortages, and when there would likely have been significant difficulties in attracting new employees and in retaining existing employees, and where the failure to fill vacant positions would likely further aggravate existing reductions or delays in offered services, and would therefore have significantly impeded the Hospital in its ability to provide health care services.”
  • Arbitrator Herman noted that individual circumstances (such as long service or a clean disciplinary record), other than exemptions based on religious or medical grounds, do not provide mitigating factors against termination, such that not providing an opportunity for employees to raise individual circumstances before placing them on unpaid leave or terminating them did not render the Policy unreasonable.
  • As noted above, in upholding the terminations, Arbitrator Herman nevertheless determined that the Hospital should have had in place a four-week unpaid leave of absence prior to effecting the terminations.

If you have any questions about the potential application of this award to your workplace, please do not hesitate to contact your regular Hicks Morley lawyer.

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