Lack of consent to medical procedure, disclosure of medical information non-culpable conduct
An Ontario hospital was not entitled to fire two employees who refused to comply with its vaccination policy during the pandemic, an arbitrator has ruled.
Humber River Hospital is a major acute care hospital in Toronto. On Aug. 17, 2021, Ontario’s chief medical officer of health issued a directive for public hospitals such as Humber River to implement a vaccination policy requiring all staff to be vaccinated against COVID-19. Any staff who didn’t get vaccinated had to provide either proof of a medical reason that they couldn’t be vaccinated or proof of completion of an education session about vaccination along with regular antigen testing.
The hospital proceeded to implement a vaccination policy with the three options for employees. However, infections of patients and staff continued to be a problem, so it removed the option of regular testing with an education session. This was permitted by the public directive.
The policy required hospital employees to receive their first dose of the vaccine by Jan. 17, 2022, and their second dose by Feb. 7. Any employee who didn’t comply would be “subject to disciplinary action up to and including termination.”
On Jan. 27, 2022, the hospital extended the deadline for the second dose to March 9.
Noncompliance with vaccination policy
Most employees complied with the policy. However, two part-time clerical staff who came into regular contact with staff, volunteers, and physicians didn’t get vaccinated. One had been with the hospital since August 2016 and the other since September 2017.
On Jan. 20, the hospital placed both of the workers on unpaid leaves of absence for two weeks and gave them letters advising that they could return to work if they provided proof of receiving the first dose of the vaccine and confirmation of an appointment for the second dose. The hospital warned them that if they weren’t vaccinated by Feb. 3, their employment would be terminated for cause.
Neither worker provided proof of vaccination by the deadline, so the hospital terminated their employment on Feb. 3.
The workers each filed a grievance alleging that they were terminated without just cause. The union argued that the workers didn’t engage in any culpable behaviour that would lead to cause, as it was settled arbitral law that an employer can’t compel an employee to consent to disclosing medical information or undergo a medical examination by treating a refusal to consent as just cause for dismissal.
Right to refuse medical treatment, disclose medical information
The union further argued that the two workers exercised their right to refuse medical treatment and their right to not disclose private medical information, which was not culpable conduct worthy of discipline. Alternatively, the union asserted that the workers weren’t given a sufficient amount of time to consider their actions before being dismissed for cause.
The arbitrator noted that the test to determine if conduct serves as a basis for discipline involves the scope of the employer’s authority over the employee and the purpose of the discipiline. In this case, the workers failed to comply with the hospital’s policy, which required them to consent to receiving the vaccine and disclosing their medical information to the hospital, the arbitrator said.
The arbitrator also noted that previous arbitration decisions had established that an employer cannot discipline an employee for exercising their right not to consent to medical treatment or the disclosure of their medical information. If an employee was disciplined for not granting such consent, “the very notion of consent would… be undermined,” said the arbitrator in referring to the jurisprudence and health information-related legislation that requires consent for both treatment and the disclosure of personal health information.
Vaccination is a medical procedure that engages the same privacy and consent issues as a medical examination, the arbitrator said.
The arbitrator noted that vaccination policies such as Humber River Hospital’s have been found to be reasonable, particular in the context of public health directives that require them and the health and safety of employees and the public. However, there was nothing in the directive from the chief public health officer that purported to circumscribe the right to choose whether to receive medical treatment and to disclose private medical information, so, the fact that the workers didn’t comply with the policy by exercising their rights couldn’t fairly be characterized as insubordination or other culpable conduct, the arbitrator said.
“Consent to medical procedures or disclosure of private medical information is not an area that falls under the employer’s sphere of authority,” said the arbitrator. “The jurisprudence is clear – [discipline] is not a permissible employer response to the exercise of this right.”
Non-culpable conduct by workers
The arbitrator determined that the hospital did not have just cause to discipline the workers, as their conduct was non-culpable.
However, the arbitrator also found that the hospital as an employer retained the power to address a situation where an employee cannot safely work in the workplace with non-disciplinary solutions, including non-disciplinary termination of employment.
In this case, there was no evidence that permitting the two workers to remain on an unpaid leave of absence past Feb. 3, 2022, presented an unreasonable burden on the hospital. The evidence showed that the majority of employees complied with the policy, so staffing issues shouldn’t have been unmanageable, and at the time of termination they had only been on an unpaid leave of absence for two weeks.
The hospital had about 4,500 employees and it was difficult to believe that allowing two part-time employees to remain on a leave of absence couldn’t be handled without clear evidence otherwise, said the arbitrator.
The arbitrator noted that, at the time of the workers’ discharge, the pandemic was fluid and evolving and there was no reason to presume that the vaccination policy would need to be in force for an extended period of time.
Regardless, it was too early for the hospital to determine after two weeks of the workers being on unpaid leave that there was no reasonable likelihood that they would be able to return to work in the foreseeable future, the arbitrator said in finding that there were no justifiable grounds to terminate the workers’ employment on a non-culpable basis.
The arbitrator acknowledged that, after two years, the hospital’s policy remained in effect, the workers remained unvaccinated, and they expressed a desire not to return to the workplace. As a result, the issue of remedy was remitted back to the hospital and the union to determine an appropriate remedy. See Humber River Hospital v. Teamsters Local Union No. 419, 2024 CanLII 19827.
