An arbitrator recently issued the first award in Ontario to address and uphold the reasonableness of a hospital vaccination policy that requires termination of employment for non-compliance. In Lakeridge Health and CUPE, Locale 63642023 CanLII 33942, Arbitrator Robert Herman held, however, that four weeks’ leave should have been implemented prior to the employees’ termination of employment, but did not order remedial action.
In June 2021, the hospital introduced the first version of the Mandatory Immunization Policy (Policy), which required employees to certify their vaccination status. If they weren’t vaccinated, they’d be required to take protective measures, but they wouldn’t be required to be vaccinated. In September 2021, the policy was revised to include mandatory vaccination. On October 1, 2021, employees were notified that if they were not vaccinated by October 29, 2021, their employment could be terminated. Effective October 29, 2021, unvaccinated employees have been placed on unpaid leave. Between November 1, 2021 and November 17, 2021, employees who were still unvaccinated or who had not indicated that they were willing to get vaccinated were fired.
Position of the trade unions
Initially, the union argued that it was unreasonable for the policy to place unvaccinated employees on unpaid leave in October 2021 and for employees who were not vaccinated to be fired. In its closing remarks, however, the union changed its position to acknowledge that unvaccinated employees (who did not work remotely) could reasonably have been placed on unpaid leave until June 2022, when they should have been returned to work. active.
Arbitrator Herman found the Policy reasonable in relation to employee termination for non-compliance. In doing so, he found that the circumstances in the months preceding the issuance of the Policies and when it was issued were relevant to an assessment of its reasonableness. For example, as of September 2021, COVID-19 had been present for more than 18 months and presented serious and ongoing health risks to employees and patients; from July 23 to November 3, 2021, the more transmissible and severe Delta variant was dominant; effective and safe vaccines were available to frontline health sector employees in March 2021 and to all hospital employees as of June 2021, and two doses provided significantly more protection than any other measure; On August 17, 2021, the Chief Medical Officer of Health of Ontario issued Directive No. 6, effective Sept. 7, 2021, requiring all hospitals to establish mandatory vaccination policies for employees and employees to provide written proof of a medical exemption or attend vaccination education sessions; with 17% of Lakeridges employees unvaccinated or with their vaccination status unknown, Lakeridge was experiencing severe staffing shortages, making it difficult to continue providing essential health services; other hospitals in the area had announced mandatory vaccination policies; and Lakeridge required about 1,300 unvaccinated employees to undergo weekly rapid antigen tests, which created a significant workload for its already inadequate staff.
The arbitrator found that the policy reasonably applied to all employees, including those who work remotely as they may occasionally have to walk into Lakeridge and be reassigned to onsite work so that Lakeridge can continue to provide service.
Arbitrator Herman also held that the case law that discipline is never appropriate for failing to take medication or fail to vaccinate could be distinguished in the context of a pandemic that had already caused a significant number of deaths and life-threatening illnesses, both of patients and staff who have worked in hospitals and continued to do so. He emphasized that the policy was designed to protect the health and safety of both employees and patients, when vaccinations were the most effective protective measure, against transmission, against infection and against life-threatening consequences of infection . The arbitrator also noted that employees were already required to be vaccinated by the hospital for numerous illnesses, so being required to get vaccinated for health and safety reasons would not be a new hospital requirement.
Arbitrator Herman agreed with Lakeridge, that it would have been materially more difficult to fill vacant positions if the hospital could only offer temporary positions of indefinite duration rather than permanent positions. He distinguished Chartwell Housing REIT v. Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (discussed here), in which the arbitrator noted that the evidence did not establish that if employees were left on indefinite leave there would be potential problems with hiring or retention.
The arbitrator also held that the circumstances before him were distinguishable in material respects from the circumstances addressed in other decisions that have considered the reasonableness of automatic cessation as part of a vaccination policy, as they did not occur in the context of a hospital providing essential, potentially life-saving, health services to the population during the pandemic, when there were already significant staff shortages
Finally, Arbitrator Herman said he did not believe that individual circumstances (other than exemptions based on religious or medical grounds) should prevent or nullify a leave or layoff that is a reasonable part of a mandatory vaccination policy or provide a factor mitigation against layoffs. He gave the following examples of such individual circumstances: long service; a clean disciplinary record; an employee who relies on misinformation; or an employee who has a genuine fear of vaccination or concerns for their safety.
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