After electing to use accumulated vacation days to cover the six days his employer ordered him to stay away from work while his flu vaccination became effective, C.B., a hospital pharmacy technician, grieved.
The union argued that the employer had violated the collective agreement by failing to follow the terms of a letter of understanding (LOU) that required the employer to reassign employees who were either medically unable or unwilling to accept flu vaccinations unless reassignment was not possible.
A distinction in the LOU was drawn between workers who were medically unable to receive the flu vaccine and workers who simply refused it.
Paid leave was specified for workers in cases where the combination of medical contraindications against the vaccination and the inability of the employer to provide “reassignment” compelled a worker to stay away from work during a flu outbreak. Workers who were unable to cite any medical contraindication and who could not be reassigned would be put on unpaid leave and were free to use lieu or vacation time at their discretion.
However, in this case the employer made no attempt to reassign C.B. This was a violation of the collective agreement, the union said, and it sought an order restoring the technician’s vacation days.
Measures to ensure worker safety
The employer argued that it was under no obligation to reassign C.B. in the manner suggested by the union, whether or not that meant modifying his job as necessary by parceling off any job duties that brought him into contact with the public. The employer took the view that to the extent that it was required to meet any reassignment obligations, those obligations were circumscribed by detailed “reassignment” procedures outlined in other provisions in the collective agreement addressing the “notice and redeployment” obligations to be followed in the event of layoffs. Moreover, the employer said, the whole point of the LOU was to outline measures to ensure worker and patient safety in the event of a flu outbreak, not to protect work opportunities for workers who chose not to be vaccinated.
While the Arbitrator was sympathetic to the complexity of the operational and policy considerations inherent in the employer’s attempt to facilitate a widespread and effective immunization campaign, he was unable to support the employer’s interpretation of its contractual obligations. “[W]e find ourselves unable to sustain the Hospital’s interpretive argument that the words “reassigned” and “reassignment” in the LOU were meant to embrace the restrictions on the Hospital’s right to reassign employees, rather than lay them off, under Article 9.08(b) [of the collective agreement].”
Right to refuse vaccination
Noting that the template for the LOU came from an agreement between another union and another employer, the Arbitrator pointed to a key addition to the LOU in question which, unlike the template, prominently and explicitly acknowledged that “hospitals recognize that employees have the right to refuse any recommended or required vaccination.” As well, reassignment obligations in the template agreement only applied to those for whom there were medical contraindications. Whether paid or unpaid, the LOU clearly contemplated the provision of leave for workers who may refuse to be vaccinated when reassignment was not possible.
It was possible that the parties looked to the use of the word “reassignment” in the template agreement and felt that by repurposing it in the LOU they could link it to the existing contract provisions on layoffs by using same word. It was possible, but unlikely, the Arbitrator said. “[H]ad it been their joint intention to embrace all of the restrictions and obligations set out in Article 9.08(b) as part of the LOU, we believe they would have said so expressly.”
While the Arbitrator acknowledged the concerns that widely accessible reassignment protocols might serve to undermine the goals of widespread vaccination, such concerns were somewhat beside the point. “As problematical as that may be — and as much as we may share that concern — it is not one that can properly inform the question of whether the ‘reassignment’ of a given employee is ‘possible.’ The right/obligation (depending on whose foot the shoe may be on, i.e., that of the employee or that of the Hospital depending on whether the shot is medically contraindicated or not and, therefore, whether the employee will be going home with pay or without pay) to be reassigned, or to effect a reassignment, exists and it must have some content.”
The parties were given 30 days to resolve the claim.
Reference: North Bay General Hospital and CUPE, Local 139. Russell Goodfellow — Chair; Bob Young (Employer Nominee) and Joe Herbert (Union Nominee) — Members. Shane Smith for the Employer and Mark Wright for the Union. April 26, 2010. 22 pp.
