THE EMPLOYERS' EDGE
Arbitrator Finds Mandatory Vaccination Policy Reasonable and Upholds Dismissal Of Unvaccinated Employees
In Lakeridge Health and CUPE, Local 6364, a matter of Policy and Individual Grievances concerning a Mandatory Vaccination Policy and Terminations, the Union grieved the Hospital’s mandatory vaccination policy and argued that certain aspects of the vaccination policy were unreasonable, including the dismissal of unvaccinated employees. The Union acknowledged that the Hospital could reasonably have placed unvaccinated employees on unpaid leaves of absence until June 2022 but that after this date the employer should have returned the employees on leave to active employment.
The Hospital took the position that implementing the mandatory vaccination policy was reasonable in the circumstances (and met the KVP principles set out in the arbitral case law for unilaterally implementing a policy) and in accordance with the management right clauses in the Collective Agreement as well as the specific language in Article R.1 of the Local Collective Agreement.
The Hospital submitted that vaccinations were the most effective way to prevent transmission and serious consequences from COVID-19. Moreover, the Hospital submitted that terminating the employment of unvaccinated employees was justified for the following reasons:
- Terminations reinforced for non-compliant employees the dire consequences of declining to get vaccinated, which in turn increased the likelihood that employees would get vaccinated;
- The Hospital’s operative needs justified the relatively quick terminations of employees on unpaid leaves, since it would have been unreasonably difficult in the circumstances to fill the vacancies created by their absence if the Hospital could only offer temporary positions of indeterminate length to prospective employees; and
- The Hospital also believed that vaccinated employees, who had been the staff who carried the burden of providing health care during the pandemic, would feel unfairly treated if unvaccinated absent employees could later return to work (para 118).
The Hospital submitted that the alternatives proposed by the Union, such as rapid testing, did not sufficiently protect against transmission risk nor against the risks or consequences of infection.
The Union argued that the Hospital did not establish any valid reason for terminating the employment of the employees who were placed on leave. The Union submitted that the “… Hospital’s failure to employ or apply any of those alternatives as of June 2022 rendered the September Policy and its application unreasonable” (para 132).
The Union further submitted that after June 2022, “the Hospital should have started to bring employees back to work, as by then the waning efficacy of a two-dose cycle against transmission of Omicron no longer justified keeping them out of the workplace” (para 134).
In addition, the Union argued that “an employee’s rights to bodily autonomy and integrity and privacy rights must be measured against the need to require an employee to receive two doses of a vaccine or be terminated” (para 136). The Union also submitted that the mandatory vaccination policy “… failed to apply the just cause standard or consider the individual circumstances of the employees subject to termination, and it was required to have done so before terminating for cause” (para 140).
The Arbitrator concluded that the mandatory vaccination policy “… was reasonable in all the respects it is challenged, except that the terminations should not have been imposed earlier than four weeks after an employee was placed on unpaid leave” (para 211). The Arbitrator wrote that “…the reasonableness of terminating unvaccinated employees, as with the overall Policy, must be assessed in context, a large hospital that provided essential health care services to the community, including acute care, ambulatory care, and longterm care services, at a time when the communities it served were experiencing severe COVID-19 infections and consequences and the need for the Hospital to maximize the services it could provide was absolutely critical” (para 177).
The Arbitrator found that the Hospital was facing serious challenges in providing these services due to the number of infected patients and understaffing. The Arbitrator wrote that “COVID-19 infections continued to have a serious impact upon employees and patients, with the likelihood of getting infected and the impact of becoming infected likely to be considerably more significant if an employee was not vaccinated” (para 177). The Arbitrator noted that “employees were already required to be vaccinated against a number of diseases, so they understood that getting vaccinated might be required of them” (para 177) and found that “a failure of all active employees to get vaccinated against COVID-19 was highly likely to negatively affect the Hospital’s ability to provide its health care services to the public” (para 177).
The Arbitrator also found that it was reasonable for the Hospital to conclude “that it would likely have far more vacancies to fill if employees were kept on unpaid leaves and not terminated, as employees would try to find work elsewhere while waiting to be allowed to return to [the Hospital]” (para 179).
The Arbitrator concluded that “[t]he need to protect the health of its employees and patients, and to act in a way that enabled the Hospital to continue to provide its services in a relatively safe manner, outweighed the rights of individual employees to preserve their employment status when they declined to get vaccinated” (para 184).
The Arbitrator then went on to address whether it was reasonable for the Hospital to have terminated employees on the dates it did so. The Arbitrator determined that employees should have been provided with a 4-week unpaid prior to having their employment terminated for non-compliance. As a result, “the Policy was accordingly unreasonable to the extent it did not provide for a four week interval before an employee on leave was terminated” (para 199).
This is a welcome decision for employers and shows that a properly-considered, well-drafted Vaccination Policy can and will be upheld where that Policy is reasonable. As always, what is reasonable will depend on the circumstances in which the Policy is being implemented: if you are considering implementing a Vaccination Policy, or your current Policy is being challenged, we can help you get it right. Contact the team at CCPartners with any questions regarding Vaccination Policies for your workplace.
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