Arbitrator strikes down “automatic termination” penalty for non-compliance with mandatory vaccination policy

February 10, 2022

In a decision issued on February 7, 2022, Arbitrator Gail Misra struck down an employer’s policy for mandatory vaccination against COVID-19 to the extent that the policy contemplated termination as an “automatic” penalty for non-compliance. The decision deals with a policy grievance by Healthcare, Office and Professional Employees Union, Local 2220 (“the Union”) against Chartwell Housing Reit (“the Employer”), an operator of four long term care (LTC) homes staffed by members of the Union. The grievance alleged the Employer contravened certain procedural provisions of the collective agreement, which require the Employer to discuss significant policy changes with the Union, and provide for the continuation of existing rights unless modified by mutual agreement of the Employer and the Union. The grievance also challenged the reasonableness of the automatic termination aspect of the policy.

Background

On May 31, 2021, the Ministry of Long-Term Care (“the Ministry”) issued a directive requiring that all LTC staff choose one of three options: provide proof of vaccination against COVID-19, provide documented medical reasons for not being vaccinated, or attend an educational program about the benefits of vaccination. The Employer enacted a policy reflecting the May 31 directive, which the Union did not challenge.

In late August 2021, without notice or consultation with the Union, the Employer announced a new policy (“the Policy”) making vaccination mandatory and scrapping the option to attend an educational program. In September, the Employer clarified that the Policy required staff to provide proof of vaccination or establish entitlement to a medical or human rights-based exemption from the requirement to be vaccinated, and that employees who failed to comply would be placed on an unpaid administrative leave or have their employment terminated. The Union grieved the new Policy.

On October 1, 2021, the Ministry issued a new directive making vaccination mandatory in order to work at LTC homes. At arbitration, the Union accepted that the Employer was subject to this ministerial directive making vaccination mandatory for LTC home staff, and did not challenge the constitutionality of the directive. The Union also did not dispute the provision of the Policy regarding non-compliant employees being placed on unpaid leave. The Union’s challenge was specific to the disciplinary component of the Employer’s Policy, which contemplated termination of employment as a penalty for non-compliance.

Analysis

Context of the Pandemic

As other arbitrators have done in decisions on mandatory vaccination, Arbitrator Misra situated the grievance in the context of the gravity of the COVID-19 pandemic. Particularly, she remarked that “it is the residents and staff in LTC homes who have suffered more in this pandemic than perhaps anywhere else” (para. 150). She noted that access to COVID-19 vaccinations has led to major improvements, particularly for LTC home residents.

Reasonableness of the automatic termination component of the Policy

Drawing on the arbitral case law regarding COVID-19 policies, Arbitrator Misra concluded that “a mandatory vaccination policy will likely be found to be reasonable in the current COVID-19 context and having regard to employers’ responsibilities to maintain a safe and healthy workplace for all employees” (para. 212). However, the cases reviewed by the Arbitrator concerned policies that provided for reasonable alternatives to termination for non-vaccinated employees, such as a requirement to undergo regular testing for COVID-19. In contrast, the Employer in this case sought the right to put non-compliant employees on unpaid leave or terminate them, without providing for a reasonable alternative.

Arbitrator Misra rejected the Employer’s view that non-compliance with the Policy should be sufficient to ground a finding of just cause for termination. She relied on the principle that the inclusion of a termination provision for breach of a policy “does not oust an employer’s onus to establish just cause in each situation, unless the parties have agreed otherwise” (para. 238). She noted that the automatic nature of discharge for non-compliance with the Policy precluded the Union from relying on any mitigating factors pertaining to the circumstances of individual employees. In addition, the Arbitrator saw no evidence that terminating non-compliant employees, as opposed to keeping them on unpaid leave, was necessary for maintaining health and safety in the workplace, or had had a significant operational impact on the Employer.

As a result, Arbitrator Misra determined that the inclusion of the discharge penalty in the Policy was unreasonable.

Breach of procedural provisions in the Collective Agreement

Arbitrator Misra further found that, in enacting the Policy, the Employer breached two provisions of the Collective Agreement.

One provision required the Employer to hold discussions with the Union prior to enacting “significant changes in rules or policies which affect the employees”. The Arbitrator found the Policy was a significant change from the Employer’s previous vaccination policy, which had allowed for non-vaccinated employees to continue working after attending an educational program and complying with certain testing and PPE requirements. She found the Employer had failed to properly discuss the new Policy with the Union.

The second provision provided that, “Existing rights, privileges, benefits, practices and working conditions shall be continued to the extent that they are more beneficial or not inconsistent with the terms of this Collective Agreement unless modified by mutual agreement of the Employer and the Union.” The Arbitrator found that the previous policy did not provide for disciplinary penalties for failing to get vaccinated. While the previous policy did not rule out the possibility of discipline for non-compliance, the Employer had not provided any evidence that such discipline had ever actually occurred. She concluded that the Employer had modified its “more beneficial” prior policy without mutual agreement with the Union.

Conclusion

Arbitrator Misra found that the Policy’s termination penalty was unreasonable and that it was enacted contrary to the Collective Agreement. However, she cautioned that this finding was with respect to automatic discharge and should not be taken to mean that employees could never be terminated for non-compliance with a mandatory vaccination policy. Such employees are not indefinitely entitled to unpaid leave or protection from termination. As Arbitrator Misra stated, “At some point, and subject to the Employer warning employees of the possibility of termination, and having considered other factors, it will likely have just cause to terminate the employment of such an employee” (para. 243).

Authored by Paniz Khosroshahy

 

 

 

 

 

 

---