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.
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.
