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Avoiding legal and regulatory pitfalls in digital transformation projects
This article first appeared in the September 2024 issue of Financier Worldwide.
Author:
Canada | Publication | May 19, 2023
A labour arbitrator recently held that an Ontario hospital acted reasonably in terminating staff who refused to receive a COVID-19 vaccination as required by workplace policy. The decision in Lakeridge Health v CUPE, LOCAL 63641 is a positive development for employers in the health care sector. It provides a strong basis for enforcing vaccination as an essential job condition for working in safety-sensitive environments.
Lakeridge Health (the hospital) adopted a mandatory vaccination policy requiring all employees to be fully vaccinated against COVID-19 as a condition of continued employment (the policy). The policy provided unvaccinated employees a brief period to provide proof of full COVID-19 vaccination. Employees who failed to comply with the policy were initially placed on unpaid leave. If employees remained unvaccinated with no medical exemption or intent to become vaccinated, their employment was terminated.
CUPE, Local 6364 (the union) grieved the application of the policy generally, and also grieved the termination of individual employees for failure to comply. The union argued that unvaccinated employees should have been placed on an extended unpaid leave, and ultimately returned to work later.
The arbitrator concluded the policy was reasonable in terminating employees for their failure to comply.
This conclusion turned on the unique circumstances in which the hospital was operating:
Prior case law held that discipline or dismissal was not appropriate where an employee refused to be vaccinated. This principle did not apply in this case, based on the unique facts. The hospital was required to protect the health of its employees and patients and to provide services safely. This requirement outweighed the right of employees to preserve their employment status when they declined vaccination.
The arbitrator highlighted that the importance of the policy, in context, justified the hospital’s treatment of non-compliance as “disciplinable misconduct.” It was a legitimate response to breach of the policy to discipline employees. Employees were not forced to vaccinate; they were required to do so if they wished to continue working for the hospital.
This decision is notable in that it is the first Ontario decision we have seen in which an arbitrator held vaccination refusal justified discipline and termination of employment.
In other mandatory vaccination policy cases, courts and arbitrators have often addressed refusal in ways that have stopped short of treating vaccination as an essential employee obligation for continued employment. For example, some adjudicators have treated refusal as:
Lakeridge Health is a different response to vaccination refusal. It treats vaccination refusal as discipline worthy, albeit in a safety-sensitive environment where employees were aware from the outset of employment that some vaccinations were a necessary element of job-related safety. This decision is encouraging for employers who are charged with operating similar safety-sensitive environments. It represents a high bar to which employers can hold employees who have an important role to play in ensuring workplace safety and the continued delivery of necessary services to the public.
The author wishes to thank Arianne Kent, articling student, for her help in preparing this legal update.
Canadian Union of Public Employees, Local 5167 v Hamilton (City), 2022 CanLII 112114 and Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220, 2022 CanLII 6832.
Publication
This article first appeared in the September 2024 issue of Financier Worldwide.
Publication
The Digital Markets, Competition and Consumers Act (DMCC Act) received Royal Assent on 24 May 2024 and is generally expected to come into force in autumn this year.
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On 26 July 2024, the People’s Bank of China (PBOC) and the State Administration of Foreign Exchange (SAFE) jointly released revised rules in respect of the investments into China’s financial market through the Qualified Foreign Institutional Investor and Renminbi Qualified Foreign Institutional Investor (collectively, QFII) regime (the New Rules).
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