Arbitrator: Ontario Hospital Workers Unjustly Fired for Refusing COVID Vaccine

A bed in need of cleaning is moved in the COVID-19 intensive care unit at St. Paul's hospital in downtown Vancouver on April 21, 2020. The Canadian Press/Jonathan Hayward

An Ontario arbitrator has determined that two hospital workers who were fired for refusing to take the COVID-19 vaccine were terminated unjustly by Humber River Hospital in Toronto after their union challenged the hospital’s actions.

Arbitrator Jasbir Parmar ruled on March 11 that the hospital did not have sufficient grounds to fire part-time clerical staff members Stacy Hughes and Marisol Sanchez.

Ms. Parmar noted that while the August 2021 provincial directive implemented during the pandemic permitted hospitals to allow unvaccinated staff to take regular antigen tests, Humber River Hospital removed that option in December 2021. It chose to only allow those considered fully vaccinated and those with proof of a medical exemption to remain at work.

Ms. Hughes had been working at the hospital since 2017, and Ms. Sanchez since 2016. The December 2021 updated vaccination policy gave a Jan. 17, 2022, deadline for the first dose. Neither employee provided proof of the first dose nor proof of approval for an exemption by that date, and both were placed on a two-week unpaid leave of absence on Jan. 20, 2022.

They were given a deadline to be vaccinated by Feb. 3, 2022. As they did not comply, they were both “terminated for cause effective immediately” that day.

The Teamsters Union, which supported and represented the two employees in the case, noted that vaccination requires disclosing private medical information. It said employers in Canada are not allowed to treat an employee’s refusal to disclose medical information or to take a medical examination as culpable conduct to justify discipline or firing.

Citing prior arbitration rulings, the arbitrator pointed to an earlier arbitration case which held that “an employer cannot compel an employee, by way of an employer direction, to be subjected to a medical exam or disclose medical information.”

“While a result of the grievors’ exercise of their right not to be vaccinated meant they were not in compliance with the Hospital’s policy, the mere fact that the grievors were unwilling to have a vaccine injected into their bodies cannot fairly be characterized as an act of insubordination, or some other culpable conduct,” Ms. Parmar said in her ruling.

However, she noted that the hospital did have the right to demand employees be vaccinated to be present in person for work for issues of safety, and it can take other action against employees outside of disciplinary termination.

The ruling in the Humber River Hospital case comes just weeks after another Ontario arbitrator ruled that nine nurses were unjustly terminated by Quinte Health in 2022 for failing to meet mandatory vaccination requirements.

In his Feb. 28 ruling, arbitrator James Hayes made comments similar to those of Ms. Parmar. He said the nurses should have been offered the option of an unpaid leave that could have allowed their return to work if their vaccination status or Quinte’s vaccination policy had changed.

Vaccine Mandates Remain

According to both rulings, mandatory vaccination consisting of two doses of an approved COVID-19 vaccine is still required at both hospitals for staff, while booster doses are not required.

In her testimony, Susan Rowe, Quinte’s vice-president of communications and people, said that while a booster requirement for staff was discussed, it was rejected because “benefits of the booster shot did not outweigh the risk of losing further staff to terminations.”

Hospitals and other medical sites remain some of the few locations in Canada where vaccine mandates still apply, with British Columbia and Ontario being the last remaining provinces to enforce mandates on health-care workers.

Almost all other government regulations surrounding mandates and vaccine passports at the federal and provincial levels were scrapped throughout 2022, ending with the federal government’s lifting of travel restrictions in October that year.