Recent Decision Upholds Termination of Employment for Failure to Comply with Mandatory Two-Dose COVID-19 Vaccination Policy

A recent arbitration decision has upheld the dismissal of hospital employees who refused to comply with a mandatory COVID-19 vaccination policy. This decision follows other decisions that have found that an employer is justified in requiring employees to be vaccinated and that decisions to place unvaccinated employees on unpaid leaves of absence area reasonable. However, this is the first arbitration decision that has upheld termination because of failure to vaccinate (ie. just cause).

The Facts

The hospital employer, Lakeridge Health, implemented a mandatory vaccination policy on September 28, 2021. The policy required all employees to be fully vaccinated against COVID-19 as a condition of continued employment, and it was only implemented after the hospital had engaged in a variety of less intrusive measures designed to encourage vaccination. Unvaccinated employees were exempted if they could not be vaccinated for a reason protected under the Ontario Human Rights Code. The hospital administrators recognized the serious health and safety risks unvaccinated employees posed to both other staff and the public. The policy gave unvaccinated employees until October 22, 2021, to submit proof of having received the first COVID-19 vaccination dose and until November 12, 2021, to provide proof of a second dose.

Based on the policy, an employee who failed to comply was placed on an unpaid leave, with the length of the leave varying based on individual circumstances. If an employee remained unvaccinated, their employment was terminated. Of the 326 hospital employees not fully vaccinated and placed on leave, 80 were terminated under the policy. Among the CUPE bargaining unit, 104 members were initially placed on a leave of absence, and 47 were terminated.

The initial grievances filed by the CUPE union asserted that the policy was unreasonable for placing unvaccinated employees on an unpaid leave of absence, and dismissing any employee who remained unvaccinated. In the final submissions at the arbitration hearing, the union changed its position, acknowledging that it was reasonable to place unvaccinated employees who did not work remotely on unpaid leave but asserting that these employees should have been returned to work in June 2022.

The Decision

The arbitrator, Robert Herman, confirmed that the hospital was justified in requiring employees to be vaccinated and that it was reasonable to place unvaccinated employees on unpaid leave of absence, which was consistent with the conclusions reached in many earlier COVID-19 vaccination arbitration cases. However, no prior Ontario arbitration decision had upheld termination for cause because of failure to vaccinate.

The arbitrator noted that the importance of the subject matter of the policy and its purposes justified requiring employees to comply with the terms of the policy and justified the hospital’s treatment of non-compliance as disciplinable misconduct. The arbitrator further stated that it was a legitimate response to a breach of the policy to discipline employees who refused to comply with the reasonable requirement that they be vaccinated to protect other employees, patients, and hospital visitors. The hospital was already having serious challenges in continuing to provide essential health care services to the community, including acute care, ambulatory care, and long-term 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 critical.

The Arbitrator also rejected the union’s argument that the policy should exempt remote workers given that they arguably posed little health and safety risk to others by working at home. Instead, the Arbitrator found that it was reasonable to include remote workers in the policy’s application, highlighting that employees who worked remotely may come to the Hospital for workshops, training, meetings, or other purposes and that an exemption would reduce the employee complement available for redeployment onsite at a time where the hospital was already struggling to continue to provide service. Moreover, the Arbitrator stated that allowing unvaccinated employees to continue to work remotely would also materially increase the likelihood that they would get infected, suffer more severe illness, and be unable to work for longer periods.

The arbitrator also determined that an employee should have been placed on unpaid leave for four weeks before termination. Although some employees received a shorter duration of leave, none of them were vaccinated during that time and there was no justification for a lesser penalty than the termination that was given.

Key Takeaways for Employers

In the past, many COVID-19 vaccination arbitration decisions have upheld the employer’s right to require employees to be vaccinated and place unvaccinated employees on unpaid leave of absence. However, none had gone as far as upholding dismissal as a disciplinary measure for refusing to comply with a mandatory vaccination policy. This decision sets a new precedent and has significant implications for health care employers who may have terminated employees under a mandatory COVID-19 vaccination policy. It confirms that at the time in question (late 2021/early 2022) it was acceptable for employers to take disciplinary action, including termination, against employees who refused to comply with a 2-dose mandatory vaccination policy aimed at protecting the health and safety of employees, patients, and the public.

This is an important decision for employers who have outstanding grievances in relation to 2-dose policies and terminations related to those policies.  What is unclear from this decision is whether terminations initiated more recently will be upheld and what the impact of waning efficacy of 2-dose policies will have on the enforceability of vaccination related leaves and terminations beyond early 2022.

PooranLaw will continue to monitor the ongoing legal developments related to cases like these. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.