Arbitrator Finds Mandatory Vaccination Policy to Be Reasonable

Arbitrator Goodfellow recently released his decision in Central West Local Health Integration Network v. Canadian Union of Public Employees, Local 96. The issue before Arbitrator Goodfellow was the mandatory vaccination policy of two Local Health Integration Network (LHIN) employers—the Central West Local Health Integration Network and the Mississauga Halton Local Health Integration Network (collectively the Employers or the LHINs). Arbitrator Goodfellow found the LHINs’ mandatory vaccination policy to be reasonable. He upheld the requirement to be vaccinated as well as the policy’s mandating of disciplinary consequences, including termination, for non-compliance.

Background

The policy came into effect on September 7, 2021. The policy required mandatory vaccination, defined as two doses of a two-dose vaccine or one dose of a single-dose vaccine, subject to medical or human rights exemptions. The policy also provided that failure to comply “…will result in progressive discipline, up to and including an unpaid leave and/or termination.” This was the same policy that applied to all 14 Local Health Integration Networks across the province.

On October 1, 2021, the LHINs began holding discipline meetings with non-compliant employees. Suspensions commenced following these meetings. The LHINs sent final warning letters to non-compliant employees by October 18, 2021. All non-compliant employees were terminated in early November 2021. Arbitrator Goodfellow noted in his decision that these terminations occurred within eight weeks of the introduction of the policy and after about four weeks of unpaid leave.

Arbitrator Goodfellow considered two legal issues in his decision:

Whether the requirement to be vaccinated in order to work was reasonable.
Whether placing non-compliant employees on unpaid leaves and ultimately terminating them made the policy unreasonable.

The Policy Was Reasonable

The Union argued that the policy was unreasonable. In support of this position, the Union submitted that there were less intrusive means of achieving the goals of the mandatory vaccination policy, such as work from home arrangements and rapid antigen testing. The LHINs asserted that the policy was a reasonable means of protecting the health and safety of employees and patients. The LHINs also took the position that the health care system was in crisis when the mandate was implemented, and mandatory vaccination was the best way to ensure that their work would continue to get done.

Arbitrator Goodfellow weighed the LHINs’ mandate to ensure the provision of quality health care in the context of the pandemic against the “intrusion on bodily integrity” associated with the requirement to vaccinate. He concluded that the balance clearly favoured the LHINs’ interests.

Arbitrator Goodfellow outlined several reasons why he determined that the mandatory vaccination policy was reasonable, including the following:

Vaccinations were safe and effective and played an important role in achieving the purpose of the policy.
The employer was required to take “every precaution reasonable in the circumstances for the protection of a worker” under s. 25(2)(h) of the Occupational Health and Safety Act.
The “precautionary principle” as set out in s. 25(2)(h) has been found to support the reasonableness of mandatory COVID-19 vaccination policies.
Determining how work is best performed—what is the optimal form of work arrangement—is fundamentally the employer’s responsibility and is perhaps the most basic management right.
There is no “duty to accommodate” those who choose not to comply with a reasonable workplace rule. Arbitrator Goodfellow specifically highlighted that considering whether there were other less intrusive means to accomplish the legitimate objectives of the policy involves a search for alternatives but does not require an employer to compromise those objectives or put in place special “accommodative” arrangements for those who chose not to comply.
Vaccination “by the many” cannot be relied on to support non-vaccination “by the few.” A requirement to vaccinate that is reasonable cannot be made unreasonable by the fact that most employees have chosen to comply with it or are already vaccinated. He specifically noted that “free-ridership” has no place in the KVP analysis.
The requirement to be vaccinated in order to work has been found to be reasonable in all but three decisions and, in two of those decisions, the finding of unreasonableness was only as of a particular time or to a very limited extent.
Testing, combined with voluntary vaccination and disclosure, has only been found to be an adequate alternative to mandatory vaccination in one instance, and there were highly unusual circumstances in that case.
While employees do not park their individual rights at the door when they accept employment, they also do not carry them with them to the exclusion of the individual or collective rights of others. The balancing analysis has repeatedly favoured the broader constituency.
The collective agreements in this case did not include a right to remote work.

Arbitrator Goodfellow highlighted that mandating vaccination allowed the LHINs to redeploy their employees to assist in testing and the rollout of mass vaccinations. The Union raised evidence in support of its argument against a vaccination requirement that there was not evidence of staff shortages or vacancies at the LHINs at the time of the terminations. Arbitrator Goodfellow rejected this argument, noting:

The fact, as the Union was at pains to emphasize, that there was not, at the time, evidence of staff shortages or vacancies at these Employers, as there was in Lakeridge, is not determinative. The LHINs were not required to wait for such shortages to arise before acting. They were entitled, even obligated, to be proactive. Clause 25(2)(h) of the OHSA and the precautionary principle supports it.

Addressing the Union’s argument that rapid antigen testing was a less intrusive way of achieving the policy’s goals, Arbitrator Goodfellow concluded that a two-dose vaccination requirement was superior to rapid antigen testing in the fall of 2021 and had not waned sufficiently in the spring of 2022 to allow for the equivalence of rapid antigen testing. Arbitrator Goodfellow also rejected the relevance of any evidence from the spring of 2022. In finding that such evidence was not relevant, he relied on the fact that the policy was fully implemented and that terminations had occurred by November of 2021. He concluded that in that context evidence regarding the spring of 2022 was of “no practical consequence to the terminated employees.”

Disciplinary Consequences Did Not Make the Policy Unreasonable

The Union argued that even if the requirement to be vaccinated was reasonable, unvaccinated employees should not have been subject to discipline. Rather, the Union submitted that the “less intrusive approach” would have been to place non-compliant employees on a non-disciplinary leave until the LHINs could demonstrate harm to their legitimate business interests. The Union also argued that “automatic terminations” were contrary to the requirements of just cause.

In response, the Employers argued that a refusal to comply with a reasonable workplace rule is a disciplinary matter that warrants a disciplinary response. The Employers further argued that they were not required to place non-compliant employees on a non-disciplinary unpaid leave and that doing so would be inconsistent with the goal of the policy, which was to keep employees safe and working.

Arbitrator Goodfellow agreed with the Employers’ position. He confirmed that there was “no question” that a failure to comply with a reasonable workplace rule—which in this case amounted to a refusal to be vaccinated unsupported on medical or human rights grounds—could be the subject of discipline. He also rejected the argument that placing employees on an indefinite unpaid leave of absence was an alternative means of accomplishing the goals or objectives of the policy or that such a consideration was required as part of the KVP analysis. Arbitrator Goodfellow also agreed that a 30-day unpaid leave, treated as a suspension, provided employees enough time to understand the significance and potential consequences of choosing not to comply with the policy. He concluded that the question of the application of progressive discipline was a matter to be dealt with in individual grievances and not the policy grievances that were the subject of this decision.

Arbitrator Goodfellow also rejected the Union’s argument that mandating “automatic” termination made the policy unreasonable. He did, however, state that each and every termination is subject to the just cause standard and no employer policy can oust an arbitrator’s jurisdiction under s. 48(17) of the Labour Relations Act to substitute a lesser penalty.

Takeaways

Arbitrator Goodfellow’s award, following the conclusions of Arbitrator Herman’s decision in Lakeridge, provides further support to the reasonableness of policies requiring mandatory vaccination and which have termination as a consequence of non-compliance. Although Arbitrator Goodfellow maintains the need for an assessment of the particular circumstances of each policy, his decision may be of assistance to employers who are addressing outstanding grievances related to COVID-19 vaccination policies.

It is important to note that Arbitrator Goodfellow did not rule on whether the Employers had just cause for termination in relation to any of the specific 22 employees who had been terminated for non-compliance. Rather, that was a matter to be determined in individual grievances.

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

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

FTR Now