An Ontario arbitrator recently released a decision regarding the reasonableness of a mandatory vaccination policy which resulted in the termination of employment for non-compliance in the hospital context. In Lakeridge Health v. CUPE, Local 6364, 2023 CanLII 33942 (Ont. Arb.) [Herman], Arbitrator Herman held that the Employer’s decision to terminate unvaccinated employees was reasonable in the circumstances.

After Ontario’s Chief Medical Officer of Health’s decision to issue a directive requiring all hospitals to establish, implement and ensure compliance with a COVID-19 vaccination policy, the Employer, a large Hospital, issued an amended vaccination Policy that required all employees to be fully vaccinated against COVID-19 as a condition of employment. Employees were notified that if they were not fully vaccinated  by October 29, 2021, their employment may be terminated.

The Union’s initial position was that the Policy was unreasonable in placing unvaccinated employees on unpaid leaves of absence in October 2021 and then terminating those employees who remained unvaccinated. The Union changed its position to acknowledge that it was reasonable for the Employer to place unvaccinated employees (who did not work remotely) on unpaid leaves of absence until June 2022 but that unvaccinated workers should have then returned to active employment.

The Arbitrator disagreed with the Union and concluded that the Policy was reasonable in its application to all employees, including those who worked remotely. The Arbitrator commented that there should be no exception for employees who worked remotely because such an exception would reduce the employee complement available to the Employer for deployment to work onsite in the hospital.

With respect to the terminations of employees who remained unvaccinated, the Arbitrator determined that it was appropriate to consider the reasonableness of the terminations as of the time the terminations were implemented. It was determined that when the Policy was issued, vaccines were the best protective measure against infection, transmission and symptoms. The Hospital was reasonable in concluding that it would likely have far more vacancies to fill if employees were kept on unpaid leaves and not terminated, because employees would try to find work elsewhere while waiting to be allowed to return to work at the Hospital and the incentives to get vaccinated would be lower. This would have materially hampered the Employer’s ability to recruit and retain employees.

It was emphasized that the reasonableness of terminating unvaccinated employees, as with the overall Policy, must be assessed in context. Since the Employer was a large hospital that provided essential health care services to the community, a failure of all active employees to be vaccinated against COVID-19 would negatively affect the Hospital’s ability to provide its health care services to the public.

The Arbitrator held that the need to protect the health of its employees and patients, and to act in a way that enabled the Hospital to continue to provide its services in a relatively safe manner, outweighed the rights of individual employees to preserve their employment status when they declined to get vaccinated.

We will continue to provide updates as more arbitration decisions regarding mandatory vaccination policies emerge.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

The Firm gratefully acknowledge the assistance of Selina Habib, an Articling Student in the firm’s Toronto office.