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In a recently released arbitration award, an arbitrator in Ontario, Canada, held that a mandatory- vaccination policy that included the right of an employer to automatically terminate noncompliant employees was unreasonable and violated specific provisions of the relevant collective bargaining agreement. The determination, made by arbitrator Gail Misra, arose out of a dispute between employer Chartwell Housing REIT and the Healthcare, Office and Professional Employees Union, Local 2220.
Background
The first provision of the collective agreement in question required that, before the employer could make any significant changes in workplace rules or policies that impacted bargaining unit employees, the employer was required to discuss the changes with the union and provide copies of any such changes and policies.
The second provision in question indicated that existing rights, privileges, benefits, practices and working conditions were to be continued to the extent that they were more beneficial and not inconsistent with the terms of the collective agreement unless modified by mutual agreement of both parties.
Effective September 2021, the Chartwell introduced a mandatory COVID-19 vaccination policy that required all staff to receive COVID-19 vaccines, subject to medical exemptions. According to the policy, the employer could place employees on an administrative unpaid leave of absence or terminate their employment if they refused to comply with the policy.
On October 1, 2021, Ontario’s Minister of Long-Term Care exercised his power to make COVID-19 vaccinations mandatory for all staff and others working at long-term care homes in Ontario, subject to medical exemptions. Pursuant to its own
Subsequently, Chartwell placed 16 employees unpaid leave because of their failure to provide proof of vaccination; 14 of these employees were subsequently terminated for just cause as a result of their failure to comply with the vaccination policy.
Union and employer arguments
Although the union was in favor of vaccinations and recognized that the mandatory vaccination requirement was a legal requirement for long-term care homes as imposed by the Minister’s Directive, it took the position that the bargaining-unit employees should not have been subject to discipline or termination, as termination of an employee’s employment was not a requirement of the Minister’s Directive. The union also held that the employer violated the collective agreement by failing to give notice to the union of the policy change and when it promulgated the disciplinary aspect of the policy without first reaching an agreement with the union about this significant change to employees’ existing rights, benefits or working conditions.
Chartwell’s position was that employees who refused to comply with its vaccination policy were engaging in culpable non-compliance, which also amounted to employment misconduct that would justify their termination of employment. Among other arguments, the employer held that there had been months of education and counseling sessions that had been provided to employees with respect to the vaccinations. Advance warnings were also provided to employees that they had to be vaccinated or the employer would place them on an unpaid administrative leave of absence, and that they risked termination if they remained unvaccinated or did not disclose their vaccination status. The employer also argued that the requirement for employees to become vaccinated was more beneficial than any aspect of the collective agreement.
The arbitrator’s decision
Arbitrator Misra determined that the employer violated the collective agreement, as it failed to provide the union with a copy of the subject policy. She also held that the Chartwell failed to discuss the changes to the vaccination policy with the union prior to implementing the changes.
Arbitrator Misra also determined that prior to the September 2021 policy being implemented, bargaining unit employees who were non-compliant with the employer’s prior vaccination policies were removed from the work schedule and placed on an unpaid leave of absence, a practice she found to be more beneficial to them than the change in the updated policy.
Notably, Arbitrator Misra accepted that the “mandatory vaccination” aspect of the updated vaccination policy was not at issue, and added that her decision did not preclude an employer from terminating employees for failure to comply with a mandatory vaccination. The part of the September change that was problematic and unreasonable was that which purported to allow Chartwell to “automatically” terminate the employees for non-compliance pursuant to the mandatory vaccination policy, without going through the step of placing a non-compliant employee on an unpaid leave of absence. The policy also precluded the union and bargaining unit employees from relying on any mitigating factors, such as length of the employee’s service, an unblemished disciplinary record or any other relevant factors that arbitrators typically consider in discharge cases.
It is critical that employers exercise caution before proceeding to terminate employees who refuse to comply with an employer’s mandatory vaccination policy. Employers would be well advised to consult with legal counsel when drafting and implementing workplace policies, and particularly those policies that relate to mandatory vaccination.
