COVID-19 Vaccination Policy Providing for Unpaid Leave or Termination for Non-Compliance Upheld by Arbitrator as Reasonable

In Revera Inc. (Brierwood Gardens et al.) v. Christian Labour Association of Canada, 2022 CanLII 28657, Arbitrator Christopher White considered a policy grievance challenging the reasonableness of a mandatory COVID-19 vaccination policy.

On August 26, 2021, Revera announced a mandatory vaccination policy (the “Policy”) requiring long-term care home and retirement home employees to be fully vaccinated against COVID-19 by October 12, 2021, or establish that they had a valid medical exemption. Employees without a valid medical exemption who remained unvaccinated would be placed on an unpaid leave of absence.  On September 29, 2021, Revera revised the Policy to provide for termination as a possible consequence. 

On October 13, 2021, non-compliant employees were placed on unpaid leaves of absence. On or about December 13, 2021, employees who continued to be non-compliant with the Policy and were on unpaid leaves of absence were provided with termination letters.  On December 31, 2021, the Policy was further amended to provide that “fully vaccinated” meant having obtained a third vaccination shot (booster). 

The Arbitrator was asked to consider three main issues: whether the mandatory vaccination policy was a reasonable workplace rule, whether unpaid leave would typically be an appropriate initial just cause consequence for a non-compliant employee, and whether termination of employment would typically be an appropriate just cause consequence for a non-compliant employee. 

The Arbitrator found that the mandatory vaccination policy was reasonable.  He noted that other alternatives such as masking, testing, and physical distancing alone were not reasonable.  Additionally, he found that “there was no evidence before me that suggested that vaccination was not an effective, if not vital, part of the strategy to prevent infection by the COVID-19 virus or reduce the severity of illness if a vaccinated individual did contract the illness.”  The evidence before him showed that “vaccines were extremely safe with little risk to those who took them,” noting that mRNA vaccines, which had no evidence of significant medical issues associated with them, were widely available in Ontario by August 2021.

In his analysis, Arbitrator White also took into account the disproportionate effects of COVID on residents of long-term care and retirement homes, and that these residents were particularly at risk of serious illness or death due to COVID.  He noted that employees had to be at the workplace to do their jobs and, in most cases, had to work directly with residents.  He also recognized that the workplaces were congregant settings where the risk of transmission was increased. 

Arbitrator White considered together the questions of whether unpaid leave or termination were, typically, appropriate just cause consequences for non-compliant employees.  He found that such consequences for failure to comply with the Policy were reasonable.  He contrasted the facts before him to other cases in which arbitrators had found mandatory vaccination policies unreasonable and determined that those cases did not prevent him from determining that discipline up to and including termination could be a proper response to the breach of a mandatory vaccination policy. 

While Arbitrator White recognized the difficult choice faced by employees who choose not to be vaccinated, he nevertheless found that the “various iterations of the Policy are reasonable and that the consequences for an employee’s election not to comply with that Policy will typically be found to meet the just cause test.”

What Does This Decision Mean for Municipal Employers?

There is a growing body of arbitral jurisprudence in support of upholding mandatory COVID-19 vaccination policies in the workplace as reasonable. However, as arbitrators employ a fact- and context-specific evaluation to determine the reasonableness of a given policy, the evolution of the pandemic itself and government responses to it could impact these evaluations.  Since the analysis as to whether or not a mandatory vaccination policy is reasonable will depend on the specific circumstances of each case, employers who are contemplating disciplinary action for an employee’s non-compliance with a mandatory vaccination policy are encouraged to seek legal advice.

For a more detailed discussion of this case, please see our Focus Alert.

Emond Harnden has been tracking COVID-19 vaccination policy awards.  Articles on previous awards can be found on our COVID-19 Information Hub.