An arbitrator recently issued the first award in Ontario to address and uphold the reasonableness of a hospital vaccination policy that provides for the termination of employment for non-compliance. In Lakeridge Health and CUPE, Local 6364, 2023 CanLII 33942, Arbitrator Robert Herman found, however, that a four-week leave of absence should have been implemented prior to the termination of the employees’ employment, but he did not order remedial relief.
Background
In June 2021, the hospital introduced the first version of the mandatory vaccination policy (Policy), which required employees to attest to their vaccination status. If they were not vaccinated, they would be required to take protective measures, but they would not be required to be vaccinated. In September 2021, the Policy was revised to provide for mandatory vaccination. On October 1, 2021, employees were notified that if they were not vaccinated by October 29, 2021, their employment could be terminated. As of October 29, 2021, employees who were not vaccinated were placed on an unpaid leave of absence. Between November 1, 2021 and November 17, 2021, employees who were still unvaccinated or did not indicate that they were willing to become vaccinated were let go.
Union’s Position
Initially, the union argued that it was unreasonable that the Policy placed unvaccinated employees on unpaid leaves of absence in October 2021, and that those employees who remained unvaccinated were fired. In its final submissions,...
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