Failure to follow mandatory vaccination policy may not be just cause

In a recently released arbitration award, Arbitrator Misra held that a mandatory vaccination policy which included the right of the Employer to terminate employees who refused to comply was unreasonable in the context of the specific provisions of the collective agreement that governed the parties. The workplace that was at issue was a long term care home. In September 2021 the Employer introduced a mandatory vaccination policy that required all staff to be vaccinated against COVID 19, subject to medical exemptions. The Minister of Long Term care subsequently made COVID 19 vaccinations mandatory for all staff and others working at long-term care homes in Ontario, subject to medical exemptions. The Employer’s mandatory vaccination policy provided that employees who were not compliant with the policy could be placed on administrative unpaid leave of absence or terminated. 

The union was supportive of the mandatory vaccination requirement and was not disputing the right of the Employer to place non-compliant employees on unpaid leave. However, the union took issue with the Employer terminating employees for refusal to get vaccinated as this was not a requirement of the Ministry’s Directive and, the union argued, was also contrary to the collective agreement. The union argued that the termination provision of the policy was a significant change to existing employees’ rights, benefits and working conditions and should not have been imposed without first reaching an agreement with the Union about this aspect of the policy.

The Employer took the position that employees who refused to comply with the policy were engaging in culpable non-compliance, which also amounted to employee misconduct that would justify their termination. In support of their position, the Employer argued that there had been months of education and counselling sessions provided to employees with respect to the benefits of vaccinations. Advance warnings were also provided to employees that they had to be vaccinated or the Employer would place them on an unpaid leave and they were warned that they were at risk of being terminated if they remained unvaccinated.

The Arbitrator held that the policy violated the collective agreement as it had not been discussed with the union prior to being implemented. Imposition of the penalty of termination for the refusal to become vaccinated was a new consequence that had not been discussed with the Union. While placing employees on unpaid leave had been agreed with the Union and could be upheld, the further step of termination was found to fall outside the terms of the collective agreement. It was this inclusion of termination for non-compliance over and above the right to place employees on unpaid leave which was found to be unreasonable. The Arbitrator noted that there was no evidence of a necessity of the right to terminate or any evidence with respect to the need for the right to terminate to protect the Employer’s operations as opposed to simply placing employees on unpaid leave.

The Arbitrator however included a caution in her decision. She stated that her decision did not stand for the proposition that an employer will never be able to terminate employees for non-compliance with a mandatory vaccination policy. It was only the “automatic” application in the Employer’s policy as it related to termination that was found to be unreasonable. The Arbitrator also confirmed in the decision that employers do not have to allow a non-compliant employee to remain on a leave of absence indefinitely. The identified mechanism for termination of non-compliant employees was to provide advance warning, while taking into consideration mitigating factors such as the length of the employee’s service, their disciplinary record and other relevant factors that would typically be considered in a termination decision.

This Arbitration decision underscores two things for employers. Decisions to place employees on unpaid leave for failure to comply with a mandatory vaccination policy will likely be upheld, particularly in work environments where there is risk associated with COVID 19. Secondly, while a with cause termination may be justified in appropriate circumstances for non-compliance with a mandatory vaccination policy, such a termination likely will not be upheld unless prior warning has been given and the employee’s history with the employer will be a factor that will be taken into consideration.

Questions? Comments? Please contact Rose Keith, QC at [email protected] or anyone else from our team listed on the Authors page.