In Separate Decisions, Arbitrators Uphold Reasonableness of COVID-19 Vaccination Policy, Termination for Non-Compliance with Vaccination Directive

In March 2022, the Ontario Government ended several COVID-19-related public health measures, including mandatory mask requirements for most indoor settings, vaccine passports, and capacity limits for indoor public settings.  In these circumstances, employers may be wondering whether COVID-19 vaccination policies that were prepared earlier in the pandemic will still be upheld.

A recent Ontario arbitral decision provides some guidance on the issue.  Additionally, an arbitrator in British Columbia has upheld a termination resulting from an employee’s refusal to become vaccinated notwithstanding a continuing directive requiring health sector employees to be vaccinated.  It therefore appears that despite the recent removal of COVID-19-related measures by government and public health authorities, it may be reasonable for employers to continue to maintain COVID-19 vaccination mandates.

Extendicare Lynde Creek Retirement Residence v. United Food & Commercial Workers Canada, Local 175

This case considered a policy grievance challenging the employer’s COVID-19 policy.  The employer, a retirement home, had a policy that stated that all newly hired employees had to be fully vaccinated as a condition of employment, and all existing employees from October 12, 2021 onwards had to be fully vaccinated.  Those requirements were subject to any applicable Human Rights Code considerations.

“Fully vaccinated” was defined as having received all booster vaccinations recommended by Health Canada.  Unvaccinated employees would be placed on an unpaid leave of absence. The policy stated that if they continued to remain unvaccinated, they “may be subject to additional corrective action up to and including termination of employment.”

The parties requested that Arbitrator Stephen Raymond “consider the reasonableness and lawfulness of the Policy in the context of the Ontario Government and other public health authorities recently reducing or eliminating various vaccination and other COVID-19 related requirements for staff, contractors and visitors in the context of retirements [sic] homes, long-term care homes and, more generally, other facilities and venues.”

Arbitrator Raymond determined that the policy was reasonable, and consistent with the collective agreement, the Occupational Health and Safety Act, and the Retirement Homes Act, 2020, even in the context of the recent relaxation of COVID-19-related requirements by the Ontario Government and public health authorities.

Additionally, he found that the vaccination requirements were reasonable regardless of whether the employer chose to conduct rapid testing or PCR testing.  The definition of “fully vaccinated” as having received the recommended booster shots was also found to be reasonable.

Arbitrator Raymond found that additional corrective action, including termination, would be subject to review according to the standard of just cause in the collective agreement.

Fraser Health Authority v. British Columbia General Employees’ Union, 2022 CanLII 25560 (BC LA)

This B.C. case dealt with the question of whether there was just cause for termination of a substance abuse counsellor who worked for the Fraser Health Authority (“FHA”) and who refused to be vaccinated against COVID-19.  While the grievor claimed that her refusal was on religious grounds, the Union confirmed that there was no religious discrimination component to the grievance.

The Provincial Health Officer of B.C. (“PHO”) issued a Hospital and Community Order on October 14, 2021 requiring all health authority employees to be vaccinated against COVID-19 in order to work (the “Order”).  The Order only had a narrow exemption on the basis of medical grounds, and no basis for religious exemption.

The grievor received multiple notices about her obligation to be vaccinated. However, she did not receive a vaccine and told the FHA that she would never receive a vaccine.  She was terminated on November 25, 2021.  While the FHA approved a policy on November 7, 2021 that reflected the terms of the Order, the FHA only relied on the Order, and not the policy, in terminating the grievor.

The Union argued that the FHA did not have reasonable cause to terminate the grievor’s employment because it had reasonable alternatives, like an unpaid leave of absence.  The FHA argued that she was terminated for just cause because she was ineligible to work under the Order.

The FHA’s position was that it was not a reasonable option to put an employee on an unpaid leave of absence of unknown length in the hopes that the PHO would change direction, particularly when there was no indication that a change was forthcoming.  Additionally, if the employer had utilized indefinite unpaid leaves, it would have had to fill 460 temporary positions (the number of employees terminated for not complying with the policy).  The employer provided evidence that temporary positions were more difficult to fill, particularly where they had no end date.

It should be noted that Arbitrator Koml Kandola’s findings were not in relation to the reasonableness of the policy, since the FHA did not rely on it.  The determination was, instead, “about whether FHA had just and reasonable cause to terminate the Grievor’s employment, in the context of a PHO order imposing mandatory vaccination requirements that apply to health sector employees across the province.”

The Union argued that a “temporary inability to work” under the terms of the Order did not constitute just and reasonable cause for termination.  While the Union did not argue for any particular alternative, it provided the example of an unpaid leave of absence or layoff.  Additionally, the Union argued that the employer was utilizing “automatic termination,” leaving no room to consider mitigating factors or individual circumstances, as would be required by the just cause analysis.

The Arbitrator stated:

For her own personal reasons, the Grievor chose not to get vaccinated.  Clearly, the Grievor has the right to make her personal choices, and I accept she strongly believes in her views.  However, the result of those choices was that she rendered herself, by virtue of the terms of the Order, ineligible to work for FHA, in any capacity.  Further, she advised FHA that she had no intention of ever becoming vaccinated.  Accordingly, there was no reasonable prospect of her becoming eligible to work under the Order in the foreseeable future.  An employee who, by her choice, renders herself statutorily ineligible to work indefinitely gives FHA cause for some action, whether it be considered culpable or non-culpable.

In considering whether termination was excessive, the Arbitrator noted that the collective agreement provisions regarding layoff applied during a loss of work or reduction of the workforce, and did not apply in the circumstances.  At any rate, the grievor would not be able to be recalled because she was ineligible to work.  The Arbitrator noted that under the terms of the collective agreement, she “would be deemed to have abandoned her right to re-employment.”  The Arbitrator further found that while the collective agreement provided for some unpaid leaves, the grievor did not apply for them and would not have been eligible for them.

The Arbitrator found that there were no cases directly on point, but did consider other cases considering the reasonableness of vaccination policies more generally.  In Ontario Power Generation and the Power Workers Union (November 12, 2021), Arbitrator Murray found that it was reasonable for the employer to place unvaccinated employees who refused to participate in testing on unpaid leave for six weeks, after which time they would be terminated (though no terminations had yet occurred).  In Chartwell Housing REIT and Healthcare, Office and Professional Employees Union Local 2220 (February 7, 2022), Arbitrator Misra found that specific collective agreement language prevented the termination and there were no operational or recruitment or retention issues supporting termination.  Arbitrator Misra’s decision was discussed in a previous Focus Alert.

Arbitrator Kandola found that the collective agreement language in Chartwell was not present in this case.  Additionally, there was evidence in this case of operational hardship in leaving employees on indefinite leave.

The Arbitrator considered “the full context within which this case arose and which existed at the time of termination,” including the Omicron variant “posing serious challenges regarding transmission and hospitalization.”  The Arbitrator also recognized that “the PHO had not provided any indication that the Order would be lifted in the foreseeable future and, indeed, has repeatedly stated that vaccination is a key tool in the continued response to the virus both in the short-term and long-term.”

As such, “there was no path forward for the Grievor for continued employment.”  On one hand, the Arbitrator considered the grievor’s emotional suffering as a result of her termination, her seven years of seniority, and her clean disciplinary record.  On the other hand, the Arbitrator recognized “the existence of a government order with no expiry date, no indication of the Order being lifted in the near future, and the serious operational impacts on the health care system associated with placing unvaccinated employees on unpaid leaves of absence of unknown duration.”

In the circumstances, the Arbitrator found that the employee had rendered herself ineligible to work, and the employer was not required to place her on an unpaid leave of absence of unknown duration and when there was no foreseeable prospect of her being eligible to work.  The Arbitrator accepted that there were compelling operational reasons for the employer’s decision to terminate, and that “no lesser alternative was reasonably available.”

The Union argued that the FHA did not take personal circumstances into account, but the Arbitrator found that the employer did undertake to address individual circumstances where possible.  Examples included pregnant women who had been advised to avoid vaccination in the first trimester, employees who wanted to be vaccinated by their immunologist, and employees who had applied for a vaccination exemption and were waiting for a response.  As such, termination was not “automatic,” as asserted by the Union.

For all of those reasons, the Arbitrator dismissed the grievance.

In Our View

The cases above provide examples of arbitrators upholding COVID vaccination policies and consequences of those policies in different contexts.

The Extendicare case shows that a COVID-19 vaccination policy can remain reasonable, even in the face of government or public health authorities relaxing COVID-19-related public health restrictions.  This is a helpful decision for employers who are maintaining a COVID-19 vaccination policy, including one that may define “fully vaccinated” as including recommended booster shots.  It reaffirms that the key consideration remains the employer’s obligation to maintain a safe and healthy workplace, in view of the prevailing risks in the workplace. A government decision to relax public health standards will not be determinative.

Employers may remain concerned about COVID-19 in the workplace considering recent pandemic developments.  On April 6, 2022, Dr. Peter Jüni, the scientific director of Ontario’s COVID-19 science advisory table, stated that wastewater data indicates that there could be up to 100,000 new daily cases in Ontario.  He noted that the figure constituted “more infections than we’ve ever seen in this province based on what we see in our wastewater.”  As such, there may be contextual support for an employer’s maintenance of a vaccination policy despite the removal of COVID-19 measures by the Ontario Government and public health authorities.

The Fraser Health Authority case shows that where a government order exists that requires an employee to be vaccinated in order to continue to work, it may be reasonable to terminate an employee who refuses to be vaccinated if there is sufficient evidence that doing so was operationally required and no lesser option existed.  The Arbitrator’s conclusions were driven by the applicable regulatory framework and the facts of the case, and as a result, employers are encouraged to seek legal advice before adopting the same approach in Ontario. That said, in keeping with other decisions, including Chartwell and Extendicare, which have confirmed that termination of non-compliance with vaccination policies must meet the just cause standard, there appears to be a growing consensus that an indefinite unpaid leave is not required in the face of a continuing refusal to comply with vaccination policies.

Employers who have placed unvaccinated employees on unpaid leave and are considering proceeding with termination of employees who continue to refuse to comply should seek legal advice to ensure that all appropriate factors are considered.

For more information, or for advice relating to a COVID-19 policy, please contact Porter Heffernan at 613-940-2764.

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