Termination was a reasonable response to refusal to vaccinate in a hospital setting

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’s decision

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:

• Protecting the health and safety of employees and patients was a legal obligation for the hospital. 
• The COVID-19 pandemic had already caused deaths or life-threatening illnesses among hospital patients and employees, and continued to do so. 
• The hospital was having serious challenges in providing services due to employee absences related to the COVID-19 pandemic. The likelihood of an employee being infected was higher if the employee was not vaccinated.
• The hospital created the policy based on scientific evidence available at the time. This evidence clearly and unequivocally demonstrated vaccination provided significant protection against transmission and contraction of COVID-19, as well as against COVID-19 symptoms. 
• Employees were already required to be vaccinated against a number of diseases as a condition of employment, so they understood that being vaccinated might be required of them. 
• Placing employees on an extended leave would make it more difficult to find replacement staff. The employer would be forced to offer replacement workers only temporary positions, which was less attractive than permanent employment.

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.

Vaccination refusal: beyond suspension and frustration

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:

• A health and safety matter justifying an indefinite leave, but not termination.² 
• An occurrence of “frustration,” in which an unforeseen event serves to end employment through no fault of either party.³

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.