Although the darkest days of the COVID-19 pandemic now seem to be behind us, disputes arising from its impact on workplaces continue to be heard and decided by courts and arbitrators across Canada. Recently, Arbitrator Robert J. Herman released his decision in Lakeridge Health v. CUPE, Local 6364, a matter involving several grievances arising from the employer’s introduction of a mandatory COVID-19 vaccination policy. Arbitrator Herman’s decision is notable in that it is the first arbitration decision in Ontario to consider the reasonableness of termination of employment as a consequence for non-compliance with a hospital’s mandatory COVID-19 vaccination policy during the pandemic.
Lakeridge Health (the “Hospital”) is comprised of five hospitals, four Emergency Departments, and more than 20 community health care locations. The Hospital employs thousands of individuals at any given time. CUPE (the “Union”) is one of the trade unions representing employees at the Hospital. Some of the job classifications falling under its purview include Registered Practical Nurses, Clerks, Service Associates, Personal Support Workers, Screeners and Secretaries.
On June 23, 2021, the Hospital introduced the first iteration of its COVID-19 vaccination policy (the “June Policy”). The June Policy required employees to attest to their vaccination status and recommended that employees become vaccinated. Employees who either refused to disclose their vaccination status or did not provide proof of vaccination (without a valid medical exemption) were required to participate in an educational program about vaccination. The June Policy indicated that unvaccinated employees could be required to take alternate precautions to prevent the transmission of COVID-19, and contemplated the possibility that such employees might be reassigned or placed on a leave of absence during outbreaks. A few months after the June Policy was first implemented, the Hospital also instituted a requirement for unvaccinated employees to undergo regular Rapid Antigen Testing (or “RAT”) as an added layer of protection.
By early September 2021, senior staff at the Hospital had recommended to its senior management team that a mandatory COVID-19 vaccination policy be adopted in place of the June Policy. They had further recommended that a component of this new policy should provide for the termination of employees who remain unvaccinated after being placed on an unpaid leave of absence. This specific recommendation was made for a multitude of reasons but in the end, it all essentially boiled down to the Hospital’s concern that it would not be able to continue providing services to the public if it had to hold the jobs of unvaccinated employees open indefinitely while they remained on an unpaid leave of absence.
In response to this recommendation, on September 28, 2021, the Hospital introduced an amended COVID-19 vaccination policy (the “September Policy”). The September Policy required all employees to be fully vaccinated as a condition of employment. Employees were given until October 22, 2021 to provide proof that they had received a first dose of the COVID-19 vaccine, and until November 12, 2021 to provide proof that they had received a second dose. Alternatively, employees could request a medical exemption to the vaccination requirement. The September Policy indicated that employees who remained unvaccinated on October 22, 2021 would be placed on an unpaid leave of absence. It further indicated that if unvaccinated employees still did not get their first dose, signal an intent to comply with the September Policy, or request a medical exemption by November 5, 2021 (later moved up to October 29, 2021), they would be terminated for just cause.
Between October 22 and October 29, 2021, the Hospital placed approximately 104 unvaccinated CUPE members on an unpaid leave of absence for their non-compliance with the September Policy. Despite the previously decided October 29, 2021 deadline, the Hospital was not entirely inflexible in the application of the September Policy, and in fact agreed to extend the time for getting vaccinated for employees on an unpaid leave of absence who expressed a willingness to become vaccinated but who simply needed more time in order to do so. Nevertheless, between November 1, 2021 and November 17, 2021, the Hospital proceeded to terminate the employment of the remaining employees who had not become vaccinated, who were not asking for extensions to become vaccinated, and who were not claiming religious or medical exemptions. The terminations ultimately affected a total of 47 CUPE members.
CUPE filed two policy grievances and four individual grievances alleging that certain aspects of the September Policy were unreasonable, and objecting to the application of these aspects to the individual grievors. Initially, CUPE took the position that the September Policy was unreasonable in placing unvaccinated employees on an unpaid leave of absence in October of 2021, and unreasonable in terminating those employees who remained unvaccinated thereafter. However, by the end of the hearing, it had changed its position to acknowledge that the Hospital could reasonably place unvaccinated employees (who did not work remotely) on an unpaid leave of absence until June of 2022, at which time it argued they should have been returned to active employment.
In assessing the reasonableness of the September Policy, Arbitrator Herman held that the circumstances existing in the months before the issuance of the policy, as well as those existing at the time it was issued, were relevant. In the fall of 2021, COVID-19 had been around for well over a year and continued to pose a serious health and safety risk to employees and patients at the Hospital alike, particularly given that the highly transmissible Delta variant was the dominant strain at that time. At the time the policy was implemented, the evidence was clear that vaccination was the best protective measure available against transmission, against becoming infected, and against severe symptoms. Arbitrator Herman also considered the additional workload demands of the RAT program for unvaccinated employees, the serious staffing issues caused by COVID-19 infections or exposures, and the anticipated difficulty in recruiting and retaining new staff in order to be able to continue providing services to the public.
In this context, Arbitrator Herman held that the September Policy was reasonable in its application to all employees, including remote employees. He reasoned that even employees who usually worked remotely might have to attend a Hospital site on occasion for workshops, training, meetings or other purposes. Moreover, even if some of these interactions could take place virtually, the Hospital had to be able to redeploy employees to other work locations and assignments as needed. He acknowledged that to carve out an exception to the policy for unvaccinated employees who worked remotely would negatively impact the complement of employees available to the Hospital for this purpose at a time when the Hospital was already struggling with staffing issues. He also acknowledged that to carve out such an exception would increase the risk that unvaccinated employees who worked remotely would become infected through community or household exposure, and if that happened, that they would become more severely ill and would therefore be unable to work for longer periods of time than their vaccinated counterparts.
Although the Union argued that the jurisprudence stood for the proposition that discipline is never an appropriate response to an employee’s failure to take medicine or to become vaccinated, Arbitrator Herman distinguished the decisions it cited from the Hospital’s pandemic situation, which he described as being “not a normal scenario”. In his view, it was a legitimate response to non-compliance with the September Policy to discipline employees who refused to comply with the reasonable requirement to become vaccinated for health and safety reasons. Employees were not being forced to become vaccinated; rather, they were only required to do so if they wished to continue working for the Hospital.
Arbitrator Herman then considered the issue of whether the terminations of employees who remained unvaccinated were reasonable and justified in the circumstances, and whether they were reasonably implemented. He again distinguished the Hospital’s situation from the circumstances in other decisions that had considered the reasonableness of automatic termination provisions contained in vaccination policies, noting that “[c]ritically, those other cases did not arise in the context of a hospital providing essential, potentially life-saving health care services to the public during the pandemic […]”. Despite the Union’s assertion that employees should have been provided with an opportunity for their individual views and circumstances to be considered, Arbitrator Herman held as follows:
The customary right of an employee to have personal circumstances considered in determining the justness of discipline or discharge has significantly less applicability, if any, in a context where placing an employee on leave or termination because they decline to get vaccinated is justified on the basis that it is necessary for them to be vaccinated in order for the Hospital to be able to continue providing its core services.
He further held that, in any event, personal circumstances – other than religious or medical exemptions – did not address the validity of requiring mandatory vaccination as a condition of employment or the justification for placing an unvaccinated employee on leave or termination, nor did they provide any mitigating factors weighing against termination. Accordingly, he did not agree with the Union that the September Policy and its application became unreasonable simply because the Hospital did not provide an opportunity for unvaccinated employees to present their individual views and circumstances prior to being subjected to discipline or termination.
Despite this, Arbitrator Herman was not convinced that it was reasonable to have different intervals of time between when unvaccinated employees were placed on an unpaid leave of absence and when their employment was terminated. Additionally, he felt that the length of the various intervals in this case – being anywhere from a few days to a few weeks – was not reasonable, as it was not sufficiently long to permit unvaccinated employees to seriously reconsider their position from the time they were placed on an unpaid leave of absence. Arbitrator Herman concluded that, in balancing all of the interests at stake, an appropriate interval of time for employees to have remained on an unpaid leave of absence prior to the termination of their employment would have been four weeks. Notwithstanding this conclusion, he declined to exercise his discretion to substitute a lesser penalty in any of the individual grievors’ cases, finding that they continued to be in breach of the September Policy at the time when they would have been terminated four weeks after being placed on an unpaid leave of absence.
In conclusion then, Arbitrator Herman upheld the September Policy almost in its entirety, finding that it was unreasonable only to the extent that it did not provide a four-week interval between when unvaccinated employees were placed on an unpaid leave of absence and when their employment was ultimately terminated. He also upheld the terminations of each of the individual grievors, even where they were not provided with such a four-week interval, given that the very reason for their discipline and termination remained applicable.
In Our View
An interesting element of this case is the scientific evidence that was before Arbitrator Herman during the hearing. Both the Hospital and the Union called on expert evidence, with the Hospital relying on the report and testimony of Dr. Mark Loeb, an epidemiologist, and the Union relying on the report and testimony of Dr. Raywat Deonandan, a biostatistician. The main differences between the experts’ evidence were with respect to the efficacy of RAT in lieu of mandatory vaccination several months after November 2021, as well as how much protection against the transmission of Omicron waned over time. Like Arbitrator Kaplan in Toronto District School Board v. CUPE, Local 4400, Arbitrator Herman preferred the evidence of Dr. Loeb over than of Dr. Deonandan, finding his views to be more accurate and more reliable.