Mandatory Vaccination Policy Update: A Divided Approach

Introduction

It has been nearly one year since we wrote about the Lakeridge Health v CUPE, Local 6364 decision by Arbitrator Robert Herman (the “Lakeridge Decision”), which confirmed that discipline, including termination, was an appropriate consequence for non-compliance with a reasonable mandatory vaccination policy.  Since the Lakeridge Decision, additional decisions pertaining to the enforcement of Vaccination Policies in the healthcare sector have been released. We wrote about both the Lakeridge Health v. OPSEU, Local 348 (“Lakeridge 2”) and Central West Local Health Integration Network v. Canadian Union of Public Employees, Local 966 (“Central West”) decisions in our healthcare update here. Both decisions follow and adopt the reasoning in the Lakeridge Decision.

In addition, arbitrator White upheld that unpaid leave and termination could be just cause consequences for non-compliance with a requirement to be vaccinated in the Long-Term Care sector in Revera Inc. (Brierwood Gardens et al.) v Christian Labour Association of Canada Award (see our prior reporting on the Revera case here).

Despite the growing case law supporting discipline, two recent decisions have found that discipline and termination are not appropriate responses to non-compliance with a vaccine policy.

In this article, we review the two new healthcare sector decisions.  We will also look at decisions outside of the healthcare sector to complete the overview of the arbitral case law regarding the question of discipline for non-compliance with policies that engage employees’ rights to keep their health information private and the right to refuse medical treatment.

The Quinte Health and Humber River Hospital Decisions

Quinte Health v Ontario Nurses Association (Hayes, February 28, 2024)(“Quinte”)

In Quinte, Arbitrator Jim Hayes found that the mandatory vaccination policy before him was to be set aside to the extent that it required the automatic dismissal of a non-compliant member of the ONA bargaining unit. Specifically, he concluded that the policy was unreasonable in that it did not permit the placement of nurses who chose not to be vaccinated against COVID on unpaid leaves of absence. Arbitrator Hayes disagreed with Arbitrator Russell Goodfellow’s statement in Central West that placing non-compliant employees on indefinite leaves of absence is unreasonable. Instead, Arbitrator Hayes adopts the reasoning of Arbitrator Daniel Ish in Consumers’ Co-operative Refineries Ltd v Unifor, Local 594 (see below) and makes the following points in support of his finding that non-compliant employees should have been placed on unpaid leaves of absence:

1. If nurses were placed on indefinite unpaid leave, this would have served the same safety objectives as terminations because unvaccinated nurses would be removed from the workplace;
2. The hospital was facing serious nursing staffing problems that were far greater than any posed by the placing of nine nurses on leave (350 vacancies were unrelated to terminations due to the policy);
3. The hospital contended that it did not foresee any short or mid-term change for a vaccine requirement, but Arbitrator Hayes noted that there was no reason why the policy could not have been subject to review and possible amendment. The employer knew the pandemic was fluid and constantly evolving and knew that more research advice was becoming available continuously. There was no reason for the hospital to adopt a rigid policy position on unvaccinated terminations.

Humber River Hospital v Teamsters Local Union No. 419 (Parmar, March 11, 2024)(“Humber River”)

In Humber River, Arbitrator Jasbir Parmar found that despite having an otherwise reasonable mandatory vaccination policy, the hospital did not have just cause to terminate the employment of two grievors for failing to comply with its policy, either on a disciplinary basis (termination for cause) or on non-culpable grounds (frustration of contract). In arriving at this conclusion, Arbitrator Parmar stated the following:

1. The conduct of not providing proof of vaccination which would have required consent to receiving the vaccine and to disclosing medical information to the hospital, is not the kind that could be considered a basis for discipline;
2. Vaccination is a medical procedure, and therefore engages the same privacy and consent issues as the disclosure of medical information and undergoing a medical examination;
3. Just because the hospital cannot invoke its disciplinary powers to suspend or terminate an employee does not mean that they must allow an employee who has failed to provide the necessary proof of vaccination to be present in the workplace; and
4. The policy requirement of vaccination in order to work can be enforced through non-disciplinary measures, including potentially non-disciplinary termination.

Arbitrator Parmar also noted her disagreements with both Arbitrators Goodfellow and Herman in Central West and the Lakeridge Decision, respectively, as follows:

1. Arbitrator Parmar disagreed with Arbitrator Goodfellow’s assertion in Central West that “there is nothing about vaccination that takes non-compliance outside of the disciplinary realm” or that discipline is “a presumptively reasonable approach to accomplishing” the objective underlying a mandatory vaccination policy (paras 52-53); and
2. Arbitrator Parmar took the position that the Lakeridge Health decision did not grapple in any meaningful way with the principle that discipline is not an appropriate response to an employee exercising his or her right to consent to receiving medical treatment or disclosing medical information. Rather, the award focused on the specific circumstances that led to the employer’s vaccination policy, that is the significant health and safety risks associated with the COVID-19 pandemic, and the reasonableness and necessity of such a policy in those circumstances.

Arbitrator Parmar also found that the hospital did not discharge its burden of establishing that there were justifiable grounds to terminate the grievors’ employment on a non-culpable basis (frustration of contract). Specifically, the test for frustration of contract was not met because,

1. There was no evidence to suggest that allowing the grievors to remain on an unpaid leave of absence past the termination date was an unreasonable burden on the hospital; and
2. As of the date of termination, there was a reasonable likelihood the grievors would be able to work in the foreseeable future because (a) the nature of the pandemic was fluid; and (b) the grievors might change their minds after a longer period of being out of the workplace.

Beyond the Healthcare Sector: Pro-Discipline

In this section, we look at non-healthcare sector awards before and after the  Lakeridge Decision that support the application of the principle of progressive discipline leading up to termination for non-compliance with a vaccination policy.  Not all the policies discussed in the following cases required employees to be vaccinated.  However, they all required disclosure of vaccine status and regular testing and sharing of test results – engaging privacy rights and the right to refuse medical procedures.

Of note, in some of the cases summarized below, the arbitrators supported the disciplinary approach but exercised their discretion to substitute a lesser penalty than discipline.

Ontario Public Service Employees Union (Wilson) v Ontario (The Ministry of the Solicitor General) (Anderson, August 8, 2023)

The grievor, a Correction Officer, was suspended and eventually terminated for refusing to comply with the testing COVID-19 requirements of the employer’s Safe Workplace Policy. Arbitrator Ian Anderson concluded that the grievor’s failure to comply with the testing requirement set out in the Policy was insubordination. He then turned to the issue of whether the appropriate response to the grievor’s insubordination was (a) termination; or (b) an indefinite unpaid leave of absence until such time as the grievor complied with the testing requirement or it was removed.

In this case, the employer did not “automatically” terminate the employment of the grievor. They followed progressive discipline and terminated on a just cause basis. Citing the Lakeridge Decision, Arbitrator Anderson found that the employer was entitled to approach the grievor’s refusal to comply with the Policy as insubordination justifying a disciplinary response in the same way that any insubordination may give rise to a disciplinary response. The grievor’s continued insubordination justified the termination of his employment and the grievance was dismissed.

Corporation of the City of North Bay v Canadian Union of Public Employees, Local 122-1 (Newman, September 5, 2023)

The union filed a policy grievance challenging the discipline provision of the employer’s mandatory vaccination policy. Arbitrator Elaine Newman endorsed the Central West decision, which upheld a similar provision, stating that termination as a disciplinary response to non-compliance with a mandatory vaccination policy is a reasonable requirement of that policy. Further, she states that,

1. Discipline is contemplated as an enforcement mechanism, without which the policy becomes a mere suggestion and enforcement a mere ideal;
2. Extending a leave of absence would not constitute a less intrusive means of enforcing the policy and would not be an effective alternative to achieving the employer’s goal of safely returning employees to the workplace; and
3. The question is whether a “less intrusive” alternative is one that applies to the rule/requirement—the obligation to become vaccinated—not to the consequences of non-compliance. In this case, the rule was not being challenged.

Arbitrator Newman dismissed the policy grievance.

Canadian Union of Public Employees, Local 9 v City of Moose Jaw (Wallace, Janzen, Brown, December 12, 2023)

The union filed a grievance with respect to the termination of the grievor, a Geographic Information Systems Technician.  The City of Moose Jaw’s vaccination policy required employees to either provide proof of vaccination or proof of a negative COVID-19 test.  The grievor refused to do either.  She was terminated following progressive discipline for non-compliance with the policy. The issue was whether the employer had just cause for discipline or termination of employment. The Board found that the employer had cause to discipline the grievor and that termination was a reasonable response to her misconduct based on the following:

1. Authorities, such as Coca-Cola Canada Bottling Limited v United Food and Commercial Workers Union Canada, Local 175 (which we wrote about here) and Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220 (which we wrote about here), recognize that termination can be a possibility under vaccination policies as long as they are not an automatic consequence;
2. The seriousness of the offence, given the grievor’s repeated refusal to comply with the policy, suggests serious consequences should follow. Specifically, the grievor’s refusal did not allow her to perform all of her duties because she could not attend at the employer’s facilities when required to do so. Further, allowing the grievor to “thumb her nose at the vaccination/testing requirements” would undermine the employer’s efforts to reduce the spread of COVID-19;
3. The incident was not isolated – the grievor persisted in refusing to comply with the policy for 12 weeks after the first deadline;
4. No discipline short of termination would have resulted in the grievor’s compliance with the policy or deterred her from continued refusal to follow the policy – there was no evidence of rehabilitative potential;
5. The employer gave the grievor a reasonable time to comply with the policy;
6. To allow the grievor to remain on unpaid leave for as long as the policy remained in effect would have amounted to the employer applying the policy inconsistently with the potential to jeopardize enforcement of the policy as it related to other employees;
7. Indefinite leave would allow the grievor to continue to refuse to comply with a reasonable employer policy was not viable and it would send the message that “employees can thumb their noses at workplace rules with no apparent consequences” and this would involve significant detrimental impact on the employer’s operations; and
8. The grievor engaged in serious misconduct.

Calgary (Corporation of the City) v Amalgamated Transit Union, Local 583 (Casey, August 29, 2023)

The grievor, a Transit Operator, was terminated for their continued non-compliance with the employer’s vaccination policy. The policy provided employees with a choice of either becoming vaccinated against COVID-19 or undergoing regular rapid antigen testing. The grievor considered the policy to be coercive and illegal, resulting in his non-compliance and placement on an unpaid leave of absence leading up to termination.  The union did not argue that discipline was inappropriate in this case, but that the discipline was too severe. Arbitrator James Casey found that a very significant level of discipline is appropriate for such non-compliance, however termination was excessive. In arriving at this conclusion, Arbitrator Casey considered the following:

1. The grievor’s refusal to comply with the policy did not increase the risk of transmission of COVID-19 to their colleagues because they were placed on an unpaid leave of absence and were out of the workplace;
2. The grievor was extremely insubordinate by refusing to comply over a lengthy period of time;
3. The grievor’s placement on unpaid leave caused further difficulty for the employer at a time when there were massive staffing disruptions arising from employee absences;
4. The pre-meditated and sustained nature of the grievor’s refusal to comply are serious aggravating factors;
5. It was made clear to the grievor that continued non-compliance might result in discipline and termination;
6. The grievor’s length of service and disciplinary record; and
7. The grievor was motivated by a personal fear of testing due to misinformed views of the health risks associated with rapid antigen testing.

The grievor was reinstated but given the very serious nature of the misconduct and other aggravating factors, the reinstatement was without compensation.

B.C. General Employees’ Union v BC Safety Authority (Technical Safety BC) (Dorsey, August 8, 2023)

The union grieved the termination of three employees. The employees were placed on six weeks of unpaid leave for non-compliance with the employer’s vaccination policy and were subsequently dismissed despite working remotely and being willing to continue to work remotely or take tests before going to the office and following accommodation protocols if offered the opportunity.

The union challenged the reasonableness of the policy because it did not explicitly include a religious exemption. Arbitrator James Dorsey stated that the employer does not have to expressly include an exemption for all protected grounds in all its policies and that the policy was generally reasonable. With respect to terminations under the policy, the misconduct for which the employees were dismissed was continued non-compliance with the policy and the issue was whether there was just and reasonable cause for dismissal. Arbitrator Dorsey upheld the disciplinary terminations.

Canadian Union of Public Employees, Local 2745 v Her Majesty in Right of the Province of New Brunswick (Couturier, June 29, 2023)

The employment of the grievor, an Educational Assistant, was terminated for her non-compliance with the testing aspect of her employer’s vaccination policy. Arbitrator Guy Couturier found that there was cause for discipline, but termination was excessive and ordered the grievor to be reinstated.

Poulos v Treasury Board (Regional Development Corporation)(Filliter, May 10, 2022)

In this case, the government policy required employees who did not provide proof of vaccination by September 13, 2021, to complete three (3) Point of Care Tests (“POCT”) a week at home and share the results with the employer.  The employee refused to comply with the policy and was terminated from her employment.  The adjudicator found that the decision to terminate “was appropriate given her intransigent stance regarding the relatively non-invasive requirement to take the POCT at home and advise the employer of the results.”

United Food and Commercial Workers, Local 175 v Coca-Cola Canada Bottling Limited (Jesin, November 23, 2023)

The grievor, a driver/merchandiser, was terminated because of his refusal to disclose his vaccination status to his employer, pursuant to the employer’s mandatory vaccination policy. Prior to the grievance arbitration hearing, the grievor was reinstated. The grievor sought backpay for the time between his termination and reinstatement.

The policy before Arbitrator Norm Jesin had already been found to be reasonable by three arbitrators before him, and he agreed with their findings. Arbitrator Jesin then found that the grievor’s refusal to disclose his vaccination status to his employer was insubordinate and worthy of discipline, relying on the Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175 decision, which we wrote about here, and his decision of  Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, which we wrote about here. Together, these decisions found that requiring employees to disclose their vaccination status is reasonable and necessary to protect the health and welfare of other employees.

Arbitrator Jesin denied the grievor’s request for backpay.

Beyond the Healthcare Sector: Pro-Unpaid Leave

In this section, we look at recent awards that are unrelated to the healthcare sector, but join the following line of pre-Lakeridge Decision cases that automatic disciplinary termination was an unreasonable consequence for non-compliance with a vaccination policy requiring vaccination, testing, or both:

1. Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220 (Misra, February 7, 2022)(see here for our prior reporting of the case)
2. BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258 (Somjen, March 21, 2023)(see here for our prior reporting of the case)
3. Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 v Toronto (City) (Rogers, August 26, 2022) (see here for our prior reporting of the case)

Notably, the two Ontario arbitrators above commented that there may be just cause for termination in some circumstances.  Arbitrator Somjen, on the other hand, took issue with the disciplinary approach.  Although he acknowledges in paragraph 90 of the decision that “[t]he employer, at some time in the future, may have reason to terminate an unvaccinated employee for non-culpable reasons.”

Consumers’ Co-operative Refineries Ltd v Unifor, Local 594 (Ish, September 7, 2023)

The grievors were terminated from employment because they refused to comply with the employer’s mandatory vaccination policy—they refused to be vaccinated or to conduct a rapid test on themselves and submit the results. Both grievors were fully aware of the policy and received progressive discipline for their non-compliance, as well as being placed on non-disciplinary leaves without pay prior to termination of employment. The union did not challenge the reasonableness of the policy.

Arbitrator Ish did not find that the employer had just cause to terminate the grievors based on principles from the Chartwell, BC Hydro, and Toronto Professional Fire Fighters cases. These decisions focus on the “automatic” disciplinary penalties for non-compliance with a vaccination policy. While the policy itself was found to be reasonable, the discipline provisions with automatic termination were not reasonable enforcement mechanisms.  Arbitrator Ish found that the less intrusive means of an indefinite unpaid leave of absence would achieve the employer’s safety objectives under the policy.

Waterloo Region District School Board v Elementary Teachers’ Federation of Ontario (Knopf, May 4, 2023)

The Federation grieved the placement of three teachers on unpaid leave for choosing not to disclose their vaccination status pursuant to the employer’s mandatory vaccination policy but did not challenge the reasonableness of the policy. This case was unique in that the employer kept people who failed to attest to their immunization status on unpaid leaves while they allowed people who were not vaccinated to continue working as long as they (a) took an educational program on vaccinations; and (b) complied with the rapid antigen testing regime. The Federation argued that the teachers who chose not to attest should have been offered the same option. Arbitrator Knopf agreed, finding that it was unreasonable to keep teachers on unpaid leave after they were willing to accept the same conditions offered to unvaccinated teachers.

Notably, the policy threatened “corrective action” for continued failure to attest to vaccination status. Agreeing with Arbitrator Gabriel Somjen in BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258, which we wrote about here, Arbitrator Knopf noted that the possibility of discipline being imposed after an unpaid, non-disciplinary leave is unreasonable. She wrote “the BC Hydro case, supra, pointed out that once a COVID-19 policy has achieved its goals, it may be unreasonable to impose an extra penalty on unpaid workers who do not pose a threat to the workplace’s health and safety.” Here, Arbitrator Knopf found that there was no reason or need to have the threat of further “corrective action” hang over the teachers who had not attested.

Conclusion

The Quinte and Humber River decisions reveal a divide between Ontario arbitrators on the question of the appropriateness of discipline in the context of a mandatory vaccine policy.  If we are “keeping score,” the current scale tips in favor of discipline as most of the decisions from multiple jurisdictions support a disciplinary approach. That is the case, even where arbitrators disagree on whether the ultimate disciplinary step of termination is justified.  We will continue to monitor the trends as they evolve.