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Arbitrator Finds Mandatory COVID-19 Vaccination Policy and Discipline for Non-Compliance Reasonable in Ontario Nurses’ Association v. Orillia Soldiers’ Memorial Hospital
Date: August 15, 2025
In a recent arbitration decision, Arbitrator Jesse Nyman upheld the reasonableness of a hospital’s mandatory COVID-19 vaccination policy. In Ontario Nurses’ Association v. Orillia Soldiers’ Memorial Hospital, the arbitrator found that both the mandatory vaccination requirement under the policy and the potential disciplinary consequences were reasonable. The arbitrator reinforced the findings of previous decisions that employer health and safety objectives outweigh employee personal interests in the context of mandatory COVID-19 vaccination policies in healthcare settings.
Background
The dispute centered on Orillia Soldiers’ Memorial Hospital’s (the “Hospital”) mandatory COVID-19 vaccination policy (the “Policy”). The Policy was implemented in September 2021, following the Ontario Chief Medical Officer of Health’s issuing of Directive #6. The Hospital developed and implemented the Policy in coordination with 14 other hospitals in the Central Region.
The Policy required all employees without a valid medical or human rights exemption to submit proof of vaccination by October 7, 2021. Employees who remained unvaccinated were placed on an unpaid leave of absence effective October 8, 2021. The Policy provided that employees who were not fully vaccinated and who did not have a valid exemption as of November 30, 2021, would be “terminated for cause with immediate effect”.
At the time of implementation, the Hospital had achieved vaccination rates of approximately 90% among staff. Nine ONA bargaining unit members were placed on a leave of absence for non-compliance with the Policy and eight ONA employees were terminated between December 1, 2021 and February 10, 2022, for non-compliance with the Policy. One employee resigned and two terminated employees later became vaccinated and were re-hired by the Hospital.
ONA’s Position
ONA argued that the test to be applied in these circumstances was the reasonableness test set out in Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co Ltd. and Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ONA submitted that the Policy was unreasonable for the following reasons:
- It provided for an automatic disciplinary response that was inconsistent with the requirement for just cause.
- The Hospital’s objective of 100% vaccination was arbitrary and unreasonable given its circumstances in September of 2021.
- The efficacy of the vaccine at that time did not support the implementation of the Policy.
- The Policy was excessively intrusive and failed to account for legitimate employee interests.
ONA submitted that the two questions before the Arbitrator, in line with the above analysis, was whether it was reasonable for the Hospital to impose a mandatory vaccination requirement in September of 2021 and whether discipline up to and including termination was a reasonable consequence for a refusal to receive the COVID-19 vaccine within the required time frame.
The Hospital’s Position
The Hospital defended the Policy as being consistent with its obligations under the Occupational Health and Safety Act (Act) and the collective agreement. The Hospital argued that it was required to “take every precaution reasonable in the circumstances for the protection of a worker” and that this obligation was consistent with the introduction and enforcement of a mandatory vaccination policy.
The Hospital also emphasized that the Policy at the time of introduction and at the time that the terminations were effected was supported by expert evidence demonstrating vaccine safety and effectiveness, and served legitimate occupational health and safety purposes. The Hospital contended that no less intrusive measures could provide equivalent protection, noting that masking and personal protective equipment alone were insufficient and subject to compliance issues.
The Hospital also relied on the well-established case law supporting the reasonableness of mandatory vaccination policies in the healthcare sector. The Hospital further submitted that non-compliance with the Policy had to be treated in a manner consistent with non-compliance with any health and safety policy, namely, a matter warranting discipline up to and including the termination of employment.
The Decision
ONA filed a Policy Grievance challenging the reasonableness of the Policy, as well as a Group Grievance related to the terminations of the ONA bargaining unit members who failed to comply with the Policy. The parties agreed to first determine the Policy grievance and then subsequently address the Group Grievances. Arbitrator Nyman’s decision therefore dealt exclusively with the Policy Grievance.
Arbitrator Nyman concluded that it was reasonable for the Hospital to implement a mandatory vaccination policy in September of 2021. In reaching that conclusion, he rejected ONA’s argument that the focus of his analysis should be limited to the individual circumstances of the Hospital. He focused the analysis instead of the broader pandemic and its impact on the health care system in general. Arbitrator Nyman also relied on the state of the existing arbitral case law in the health care sector. He noted that all of the health care cases before him had concluded that a mandatory vaccination policy was reasonable.
Arbitrator Nyman also relied on the scientific evidence presented by the Hospital which he found clearly showed that the vaccines provided a high degree of protection from serious illness, some protection from infection and reduced transmission. Looking to this scientific evidence, he concluded that it was reasonable for the Hospital to maintain its Policy through 2022 and into the fall of 2023. In reaching that conclusion he wrote:
125. […] perhaps an employer could take a forward-looking approach and conclude that there was some evidence that the benefits of vaccines were waning and thereby conclude a vaccination policy was never, or no longer, required. However, it would be equally reasonable, if not more so, for an employer to take a cautious approach and leave such a policy in place until it was certain of the direction of the pandemic and until such time as it was clear that such a policy, or vaccination, no longer had value. In the context of the ever-changing pandemic and the operation of an acute care hospital, a gradual cautious approach to lifting a vaccine requirement was a reasoned, and reasonable, approach to adopt.
126. While ultimately the course of the pandemic eased through the end of 2022 and into 2023, that was by no means certain or foreseeable in the fall of 2021 and into the winter of 2022. In fact, with the rise of Omicron, which led to another provincial shutdown and further public restrictions, the direction of the pandemic, let alone the easing of restrictions and public health measures, was anything but certain. An employer could not be faulted for taking a cautious approach to safety in these circumstances and leaving protective measures in place that had proven extremely successful in the past. I do not accept that the state of the scientific evidence was so conclusive about the impact of the vaccines going forward or the course of the pandemic that in the Fall of 2021 and through the winter of 2022 (the time period which Dr. Rau testified about) that an employer could be faulted for imposing and leaving a mandatory vaccination policy in place that was otherwise reasonable.
Turning to the second question posed by ONA, Arbitrator Nyman found that it was reasonable for the Policy to contemplate discipline and termination for non-compliance. He reiterated that the Policy was a health and safety measure and that non-compliance with an otherwise reasonable health and safety policy could be grounds for discipline in almost any other context. Arbitrator Nyman rejected ONA’s argument that the individual interests engaged by the Policy (i.e. bodily autonomy, medical decision making, employment interests) would result in some different conclusion. He instead found that the Hospital’s interests (which were principally health and safety of frontline staff and patients in an acute care community hospital during a global pandemic) outweighed any individual interests at stake.
Arbitrator Nyman also rejected ONA’s argument that the presence of staffing shortages were necessary to conclude that termination under the Policy was reasonable. He found that such evidence was a factor in the analysis, but not the only or governing factor. Arbitrator Nyman also accepted that employers in the healthcare sector were entitled to take a proactive approach to minimize staffing challenges and that this was a valid interest that had to be weighed against the non-compliant employee interests.
Arbitrator Nyman also distinguished the case before him from the decision in Quinte West v. ONA. He found that the Policy did not provide for an automatic termination as employees were provided with multiple warnings and a seven-week unpaid leave period before being terminated. He also noted that since the decision in Quinte there had been a number of compelling cases that had found a policy contemplating termination to be reasonable in the circumstances. He cited specifically to the Divisional Court’s decision in Humber River Hospital v. Teamsters Local Union No. 419, which he concluded was binding on him and which supported the appropriateness of discipline for a failure to comply with a reasonable mandatory vaccination policy.
The group grievances challenging the specific terminations were remitted to the parties. Arbitrator Nyman clarified that any determination of the group grievances would require an application of the just cause analysis to the individual circumstances of each grievor.
Orillia Soldiers’ Memorial Hospital was successfully represented by Hicks Morley’s Andrew Zabrovsky and Amanda Cohen.
To discuss how we can assist you in reviewing workplace health and safety policies or addressing disciplinary matters arising from policy non-compliance, please reach out to Andrew Zabrovsky, Amanda Cohen, or your regular Hicks Morley lawyer.
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