Canadian Lawyer

May 2023

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14 EMPLOYMENT TERMINATION SPECIAL PROMOTIONAL FEATURE Vaccine refusal and dismissal IN A recent arbitration decision, Lakeridge Health v. CUPE, Local 6364, 2023 CanLII 33942 (argued by the authors), arbitrator Robert Herman upheld the dismissal of hos- pital employees (including those working from home) for continued refusal to comply with a mandatory COVID-19 vaccination policy. The decision, that the hospital was justified in requiring employees to be vaccinated and that it was reasonable to place unvaccinated employees on unpaid leave of absence, is con- sistent with rulings in many earlier COVID-19 vaccination arbitration decisions. However, as of the time of writing, this is the first Canadian arbitration decision to treat failure to comply with a COVID-19 vaccination requirement as disciplinary misconduct and cause for dis- missal of a unionized employee. The vaccination policy On September 28, 2021, Lakeridge Health (the "Hospital") implemented a mandatory vaccination policy (the "Policy"), requiring all employees to be fully vaccinated against COVID-19 as a condition of continued employment. The Hospital implemented the Policy only after it engaged in a variety of less intrusive measures designed to encourage vaccination and exempted those who could not be vaccinated for a reason protected under the Ontario Human Rights Code 1 . The Hospital did not take lightly the deci- sion to terminate employees for continued refusal to vaccinate. However, as a health- care employer, Hospital administrators rec- ognized the serious health and safety risks unvaccinated employees posed both to other staff and the public. As well, faced with con- tinued staff shortages, Hospital administra- tors believed it would be extremely difficult to fill vacancies with temporary positions, which would be necessary if unvaccinated staff were placed on unpaid leave and did not have their employment permanently end. The Policy gave unvaccinated employees time to provide proof of vaccination, failing which an employee was initially placed on unpaid leave, and thereafter their employ- ment was terminated. The length of time on unpaid leave prior to termination varied based on an employee's individual circum- stances – from several days to three weeks. The Hospital was flexible in its application of the Policy and extended the timeline for those who expressed a willingness to become vac- cinated. Of the 326 Hospital employees not fully vaccinated and placed on leave, 80 were terminated under the Policy. The grievances The Canadian Union of Public Employees ("CUPE"), representing 47 of the terminated employees, filed two policy grievances and four individual grievances. Initially, CUPE asserted the Policy was unreasonable for plac- ing unvaccinated employees on unpaid leave of absence and dismissing any employee who remained unvaccinated. In final submissions at the arbitration hearing, CUPE changed its position, acknowledging it was reasonable to place unvaccinated employees who did not work remotely on unpaid leave, but asserting these employees should have been returned to work in June 2022. The arbitrator's decision Arbitrator Robert Herman confirmed the Hospital was justified in requiring employ- ees to be vaccinated and that it was reason- able to place unvaccinated employees on unpaid leave of absence. This was consistent with the decision reached in several earlier COVID-19 vaccination arbitrations. However, no prior arbitration decision had upheld dismissal as a consequence of failure to vaccinate. On this contentious issue, whether failure to vaccinate was disci- plinary misconduct that could result in dis- missal, the arbitrator stated: ... The Policy did not serve to protect only the employees who got vaccinated, but also vaccinated employees and patients and their families who might be exposed to unvaccinated employees. Cases that stand for the principle that employees who refuse or decline to take medicine do not engage in disciplinable conduct have limited appli- cation in this context. This is particularly so where the [Occupational Health and Safety] Act requires that employers take reasonable steps to protect the health and safety of employees and where the Local Agreement stipulates that employees have the right to a safe and healthy work envi- ronment and directs the Hospital not to wait until there is scientific certainty before taking reasonable actions to reduce the risks to employees. It is a legitimate response to a breach of the Policy to discipline employees who refused to comply with the reasonable requirement that they be vaccinated in order to protect other employees, patients Brought to you by Erin Kuzz and Zack Lebane Arbitrator upholds termination of employment for failure to comply with mandatory COVID-19 vaccination policy in case argued by Sherrard Kuzz

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