Ontario long-term care employer fails to consult union at crucial time
A mandatory vaccination policy may be reasonable for an employer to implement, but it should be careful not to stumble over the implementation and consequences for non-compliance, a recent Ontario arbitration decision has revealed.
“Automatic termination isn't going to be justified simply because there isn't compliance with a mandatory vaccine policy,” says Rishi Bandhu, an employment lawyer in Oakville, Ont. “It's not enough just to say, ‘We've introduced a reasonable policy, you have to comply by a certain date, and if you don't comply then that's just cause for termination.’ There has to be some individual consideration of employee circumstances before you can ever make that decision.”
Chartwell Housing REIT operates four long-term care homes in southwestern Ontario. In June 2021, Chartwell revised its COVID-19 vaccination policy in response to a directive from the provincial government. All staff were required to provide either proof of vaccination, proof of a medical exemption, or complete an educational program. Staff who weren’t fully immunized had to wear personal protective equipment (PPE).
Chartwell advised the union of the new policy and the union didn’t object.
On Aug. 26, Chartwell issued a press release with other seniors’ living operators stating that they were making COVID-19 vaccination mandatory for all long-term care and retirement home staff. Those who weren’t vaccinated would be placed on an unpaid leave of absence.
Chartwell didn’t inform the union ahead of the press release and advised staff of the new policy on Aug. 31. All staff had to provide proof of vaccination or a medical exemption by Oct. 12. After that date, employees who failed to comply would be placed on an “unpaid administrative leave or may have their employment terminated.”
The union grieved the new policy, claiming that it breached the collective agreement as well as Chartwell’s past practice. It argued that the company violated the agreement’s requirement to discuss “any significant changes in rules or policies which affect employees.” The collective agreement also required that practices and working conditions continue “unless modified by mutual agreement of the employer and the union.”
This was where Chartwell made its first mistake despite the provincial directives, says Bandhu.
“There were specific provisions in the agreement that said that the employer had to consult with the union before introducing changes,” he says. “Notwithstanding the nature of COVID-19, the fact that it's changing and it's so dangerous — and we're talking about a long-term care home — the employer can’t skip over that process. They still had to abide by their collective agreement.”
On Oct. 1, the Ontario government directed that all staff of long-term care homes must provide proof of COVID-19 vaccination or a valid medical exemption.
A few days later, Chartwell sent a letter to each employee who had not yet complied with the policy saying that failure to comply by Oct. 12 would result in an unpaid administrative leave of absence. It also warned that “continued non-compliance with the policy may result in discipline up to and including the termination of your employment.”
On Oct. 14, Chartwell informed the union that it was going to be moving to the disciplinary stage of the new policy and employees would be told if they weren’t vaccinated by Dec. 10, their employment would be terminated. The company later extended the deadline to Dec. 13.
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Employees terminated
On Dec. 13, Chartwell terminated 14 employees for failing to comply with the mandatory vaccination policy.
In addition to its original grievance, the union took issue with the disciplinary element of the policy, claiming that it was a significant change that required consultation and there were other options to termination for non-compliance.
“The union was very clear that they supported vaccination and they were encouraging everybody to get vaccinated,” says Bandhu. “And the use of a leave of absence to address anybody who wasn't vaccinated was also not really disputed. It's the imposition termination that the union really had an issue with.”
The arbitrator found that the new mandatory vaccination policy was clear and unequivocal, all employees were informed before it was acted upon, and it was consistently applied. In addition, in light of the Ontario government’s mandatory vaccination directive and previous arbitration decisions, such a policy was reasonable in and of itself, said the arbitrator.
However, the previous policy only stated that those who didn’t provide proof would be taken off the schedule and put on unpaid leave until they met the requirements. The new policy upped the ante by imposing not only a leave of absence, but also “the alternative of a disciplinary penalty of discharge” for non-compliance — a significant change. Chartwell’s failure to provide advance notice to the union was a violation of the collective agreement, said the arbitrator.
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The automatic discharge as a consequence of noncompliance was also unreasonable. The arbitrator pointed to the fact that only about two per cent of workers were off work for being non-compliant, and at the time of termination they had already been on unpaid administrative leave for about eight weeks — they presented no health and safety threat.
The arbitrator also noted that terminating non-compliant employees within two months was “a very short time in which to make an irrevocable decision” in a “turbulent environment” in which restrictions and requirements were always evolving. Chartwell was trying to simply terminate employees “without having to go through the step of the unpaid leave of absence” written into the policy, said the arbitrator.
The arbitrator upheld the grievance and ruled that the September 2021 vaccination policy violated the collective agreement — a decision that reinforces the idea that it’s difficult for employers to terminate employees for not following a vaccination mandate, says Bandhu.
“We can't ignore the fact that individuals have the right to make decisions about the medical treatments that they receive, and there's no better demonstration of that than this decision that's in the context of long-term care homes where the risk of COVID-19 is so severe,” he says.
“Even in that context, an individual's decision to say, ‘Vaccination is not right for me’ is still something that draws some respect, and by extension into the non-unionized environment as well.”
“We're nowhere close to acceptance that non-compliance with a COVID-19 vaccine mandate is misconduct that's deserving of just cause. There may be certain circumstances where that will be the case, but it's not an automatic thing.”
See Chartwell Housing REIT (The Westmount, The Wynfield, The Woodhaven and The Waterford) and Healthcare, Office and Professional Employees Union, Local 2220, UBCJA), Policy Grievance #09-09-21 (Feb. 7, 2022).
