'Policies don't have to be formally adopted written documents, it’s what you actually do in practice'
An Ontario company did not have to have a formal vaccination policy of its own when it notified employees of mandatory vaccination requirements at the workplaces of its clients and placed non-compliant employees on unpaid leave — and this was OK, an arbitrator has ruled.
When the employer informed employees of the requirements and the consequences of non-compliance, it affectively adopted the policies of its clients, says Annie Gray, a labour and employment lawyer at Stewart McKelvey in Halifax.
“The arbitrator looked at the practical effects in terms of what the employer did,” she says. “A good takeaway is that policies don't have to be formally adopted written documents, it’s what you actually do in practice.”
Clients required vaccination at sites
Nova Services Group provides cleaning, maintenance, dietary, and environmental services to long-term care (LTC) homes in Ontario through contractual agreements.
In March 2020, the Ontario government amended the province’s Employment Standards Act, 2000 (ESA), allowing employers to place employees on temporary layoff for a longer period of time than normal if the layoff was related to the COVID-19 pandemic.
One year later, with COVID-19 vaccinations underway, Nova sent a letter to its employees strongly encouraging them to get vaccinated. It noted that the LTC homes which were its clients might not allow them to work if there was an outbreak, which could “result in you being removed from the unit and placed on an unpaid leave of absence.”
In June and July 2021, three of the client LTC homes advised Nova of their immunization policies. The province’s minister of LTC care also issued a directive setting out requirements for such policies in LTC homes. The policies required everyone subject to them to provide proof of vaccination for each recommended dose, written proof of a medical exemption, or proof that the individual completed an approved vaccination educational program.
Read more: A B.C. company’s vaccination policy was reasonable overall, but the possibility of discipline or termination for non-compliance was not.
In August 2021, a coalition of LTC operators, including Nova’s clients, announced that COVID-19 vaccination would be mandatory for LTC care staff and third parties. All staff had to provide proof of vaccination by Oct. 12. The minister followed with a directive that LTC homes adopt COVID-19 immunization policies requiring staff and volunteers to provide proof of vaccination.
Nova sent a letter to employees advising that its clients required the employees of contractors to provide proof of vaccination, and a separate letter to employees who had told the company they had chosen not to get vaccinated that if they didn’t, their non-compliance would result in a “temporary unpaid leave of absence.”
In January 2022, the ministry of LTC care issued another directive updating COVID-19 immunization requirements to include a third dose for LTC care team members. A week later, Nova sent a notice to employees about the third-dose requirement, saying that workers who didn’t provide proof of a third dose by March 14 would be placed on an unpaid leave of absence, unless they had a documented medical reason preventing vaccination.
In early October, Nova advised nine non-vaccinated employees that they did not satisfy client site requirements and were “not permitted to access the site” where they worked. These employees were placed on an unpaid leave of absence effective Oct. 12.
Employer had no policy: union
The union filed a grievance, arguing that Nova didn’t have a mandatory vaccination policy of its own and the application of its clients’ policies effectively banned them from working. As a result, the employees should have been placed on temporary layoff – which would allow them to collect employment insurance (EI) benefits – rather than an unpaid leave of absence.
The arbitrator disagreed with the union’s argument that unvaccinated employees were essentially banned from the LTC homes, as site bans generally applied to individuals being permanently banned from entering a site. In this case, however, the LTC clients did not ban any specific individuals or permanently restrict anyone. Instead, the clients established a rule or requirement for which anyone working at their sites must comply.
“The union wanted to latch on to that idea that if you're going to take someone out of the workplace at the behest of a third party, the proper course of action is to lay them off,” says Gray. “The arbitrator wasn't satisfied that that was really analogous, because this wasn't someone specifically doing something wrong, it was a blanket requirement that people were choosing not to meet.”
The arbitrator also noted that the Ontario Ministry of LTC directed LTC homes to implement mandatory vaccination for all staff working at the homes, regardless of whether they were employees of the homes or employees of contractors like Nova.
Read more: An Ontario arbitrator upheld the vaccination policy that followed federal government requirements for an employer that operated of federally-owned land.
The arbitrator found that Nova adopted the clients’ policies, as it provided regular communication to its employees clearly stating the requirements for employees working at LTC homes and the company established its own consequences for non-compliance. By referring to the policies at the clients’ sites, Nova was adopting its own client- and site-specific policy.
“The employer had to have a notice of vaccination status policy and they retained discretion as to what they were going to do when they received it,” says Gray. “They were the ones with the power and, in the end, decided to put [unvaccinated employees] on an unpaid leave of absence – that wasn't really within the scope of what the clients who drafted the policies could do.”
One overall policy too broad
The union had pointed out that Nova didn’t have one consistent policy for every employee as it followed the policies of individual clients at their respective sites, but this didn’t matter in these circumstances, according to Gray.
“The arbitrator made the point that I think was quite astute – if the employer had adopted one broad policy to everybody, no matter the specific worksite they were at, that would likely be overbroad and not reasonable,” she says. “So that sort of backfired as a union argument.”
The arbitrator noted that the collective agreement’s management rights clause permitted Nova to conduct its businesses in accordance with its commitments and responsibilities, and placing employees unable to work at client sites on unpaid leave was permitted by the agreement. The layoff clause in the agreement contemplated unilateral action by the employer and the leave of absence provision contemplated a request by an employee – neither of which applied to unvaccinated employees who were unable to perform available work because of a choice to not comply with a third-party agreement.
The arbitrator determined that Nova was entitled to place unvaccinated employees who couldn’t work at its clients’ LTC homes on unpaid leaves of absence.
Gray says that the basis for the union’s argument was that it wanted unvaccinated employees to have better access to EI benefits if they weren’t working and the specific layoff and leave of absence situations outlined in the collective agreement, but the arbitrator didn’t go for it.
“The arbitrator rejected that on the basis that the language was broad in terms of management rights clause and they weren't just limited to the specific examples [of layoff circumstances],” says Gray. “And similarly, the leave of absence situations that were enumerated, the ones the employees could ask for, weren't the only situations in which the employer could put people on leave.”
Takeaway for HR
A key point in the decision is that employers can have a policy by practice rather than formality, says Gray.
“In this case, it was interesting that the union didn't try to challenge the employer for not following the dotting of the ‘I’s and crossing of the ‘T’s, in terms of notifying the union about the policies it had, so they got to dodge that issue,” she says.
“But you can have a policy in place by how you act, how you treat your employees, and the letters that you write them, even if you don't have a formally crafted one.”
“Policy really is a matter of practice – it’s a good thing to remember both for good and bad.”
See LIUNA, Local 183 and Nova Services Group Inc. (Vaccination Policy), Re (July 6, 2022).
