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COVID - Vaccination (4). Humber River Health v. Teamsters Local Union No. 419
In Humber River Health v. Teamsters Local Union No. 419 (Div Ct, 2025) the Divisional Court dismissed an employee's JR, here from Arbitrator's grievance-supporting findings that the employer "terminated their employment for cause in February 2022 for failing to comply with Humber’s mandatory vaccination policy issued during the pandemic".
Here the court distinguishes the (pre-COVID) law that vaccination non-compliance cannot support employee discipline, with COVID exceptions to that:[39] Directive #6 issued by the Chief Medical Officer of Health for Ontario for Public Hospitals required Humber as a public hospital within the meaning of the Public Hospitals Act and other covered organizations not only to establish and implement a COVID- 19 vaccination policy but to ensure compliance with it. The introduction to Directive #6 provides in part:There are many health care workers (HCW) in higher risk settings (e.g., public hospitals, home or community service settings, paramedics in ambulances, etc.) who remain unvaccinated and are posing risks to patients and other HCWs as well as to the health care system capacity due to the potential (re) introduction of COVID-19 in those settings. In addition to these concerns, the prevalence of the Delta variant of concern globally and within Ontario, has increased transmissibility and disease severity than previous COVID-19 virus strains. There is, therefore, an immediate risk to patients within hospitals and home and community care settings who are more vulnerable and medically complex than the general population, and therefore more susceptible to infection and severe outcomes from COVID-19. [40] Despite Humber’s implementation of the Policy under Directive #6 which provided the option to employees of complying by proof of completing an educational session and submitting to regular antigen testing (the “third option”), at the time Humber amended the Policy, case counts were surging among patients and staff. With the emergence of the more transmissible Omicron variant counts, and difficulties with the test and policy, Humber amended the Policy to remove the third option. This meant that all staff, patients and visitors were required to be fully vaccinated, unless medically exempt. The Amended Policy clearly stated that failure to comply could result in discipline, up to and including termination of employment.
[41] The principle that non-compliance with an employer’s mandatory vaccination policy in the context of the pandemic is a basis for discipline was summarized most concisely by Arbitrator Robert Herman in Lakeridge Health v. CUPE, Local 6364, 2023 CanLII 33942 (ON LA) (“Lakeridge”) and Arbitrator Russell Goodfellow in his 2023 decision in Central West. Both awards have been followed numerous times since they were released in 2023, and Central West has been described as a “resounding” precedent.[8] Most importantly, both awards were decided in the healthcare setting and in factual circumstances directly analogous to this case.
[42] In Lakeridge, Arbitrator Herman upheld the reasonableness of a hospital’s decision to place unvaccinated employees on an unpaid leave and then terminate their employment for non-compliance with its mandatory COVID-19 vaccination policy. In doing so, he addressed the argument (raised by the union in that case) that discipline is never an appropriate response to an employee’s exercise of their right to refuse medical treatment. Arbitrator Herman explained that the exigent circumstances of the COVID-19 pandemic required a balancing of the safety risks posed to the hospital’s patients and staff against the individual employee’s privacy interest:[171] The Union argues that the case law establishes that discipline is never appropriate for the failure to take medicine or to be vaccinated. That may generally be accurate in the contexts in which the jurisprudence relied upon by the Union arose. Again, this is not a normal scenario. The September Policy was issued in the context of a pandemic that had already caused significant numbers of deaths and life-threatening illnesses, both of patients and staff who worked in hospitals, and continued to do so. Unvaccinated employees presented greater risks for all employees and patients, not only for themselves…
[172] The line of authority that follows after KVP does not stipulate that breach of a unilaterally issued policy cannot be grounds for discipline. Rather, the cases generally conclude that discipline may in fact be appropriate for breach of a unilaterally imposed company policy or rule; see for example, Chartwell Housing REIT v. Healthcare, Office and Professional Employees Union, Local 2200,UBCJA, 2022 CanLII 6832 (ON LA) (Misra); Unifor Local 973 v. Coca-Cola Canada Bottling Limited (Wright), 2022 CanII 25769 (ON LA) (full citation added); Coca-Cola Canada Bottling Limited v United Food and Commercial Workers Union Canada, Local 175 (Herman), 2022 CanLII 83353 (ON LA) (full citation added); Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 v. Toronto(City) (Rogers), 2022 CanLII 78809 (full citation added).
[173] The importance of the subject matter of the Policy and its purposes justified requiring employees to comply with the terms of the Policy, and justified the Hospital’s treatment of non-compliance as disciplinable misconduct. As noted, the Policy did not serve to protect only the employees who got vaccinated, but also vaccinated employees and patients and their families who might be exposed to unvaccinated employees. Cases that stand for the principle that employees who refuse or decline to take medicine do not engage in disciplinable conduct have limited application in this context. This is particularly so where the Act requires that employers take reasonable steps to protect the health and safety of employees and where the Local Agreement stipulates that employees have the right to a safe and healthy work environment and directs the Hospital not to wait until there is scientific certainty before taking reasonable actions to reduce the risks to employees.
[174] It is a legitimate response to a breach of the Policy to discipline employees who refused to comply with the reasonable requirement that they be vaccinated in order to protect other employees, patients and Hospital visitors. Employees were not forced to get vaccinated, they were required to get vaccinated only if they wished to continue to work for the Hospital. [43] The Arbitrator’s view was that the analysis in Lakeridge did not “grapple in any meaningful way” with the principle that discipline is not an appropriate response to an employee exercising their right to consent to receive medical treatment and/or disclose medical information.[9] The Arbitrator held that it was an error to engage in any balancing of interests or give any focus to the exigent circumstances of the COVID-19 pandemic that necessitated a mandatory vaccination policy.
[44] By elevating medical consent rights above the importance of the subject matter of the policy and its purpose, the Decision failed to address the very different context of the pandemic as described in the documentary record filed by Humber: an extreme situation which Humber and other hospitals faced in late 2021 and January, 2022 – dramatically increased COVID case counts among patients, increased rates of staff infections and a serious threat of health system overload at Humber and other hospitals in Ontario.
[45] The Arbitrator correctly states at para. 58 of the Decision that whether a rule or policy is reasonable is separate from an analysis of whether there is just cause for discipline for breach of the rule. The forum of the individual grievance is the appropriate place for consideration of individual consequences.[10] The fact that the employer’s rule requiring vaccination in order to work in the workplace is reasonable is not a sufficient answer to the question of whether discipline is justified in the specific circumstances in which it was issued. However, the Decision then failed to balance Humber’s duty to protect its patients and staff against the significant health and safety risks associated with the COVID-19 pandemic.
[46] In finding that non-compliance with mandatory vaccination can never be met with discipline given privacy and bodily integrity rights, the Arbitrator unreasonably disregarded the nature of Humber’s workplace which made that policy reasonable in the first place: namely, that it was an acute care hospital with vulnerable patients experiencing increased infection rates due to the Omicron strain.
[47] In Central West, supra, similar to Lakeridge, an arbitrator upheld the reasonableness of a health authority’s mandatory vaccination policy which stated that non-compliance would result in progressive discipline and cited numerous previous arbitral cases as support.[11]
[48] The Arbitrator in this case opined that employers could accomplish the objectives of a reasonable mandatory vaccination policy through less intrusive non-disciplinary measures, which is why the presumption that non-compliance may be responded to with discipline which generally applies does not apply where medical consent is engaged. Teamsters argued that employees should have been placed on non-disciplinary leave until the employer could demonstrate some harm to its legitimate interests.
[49] In Central West the arbitrator found that whether there was a “less intrusive” alternative, such as placing employees on indefinite unpaid leaves of absence, applies only to an analysis of the reasonableness of the mandatory vaccination requirement, not to the consequences of non-compliance.[12] He also found that placing employees on indefinite unpaid leaves of absence raised by the union in that case was not a suitable or effective alternative means of accomplishing the objective of the policy:[156] Nor, in my view, can it reasonably be suggested that placing employees on indefinite unpaid leaves of absence is, in any way, an alternative means of accomplishing the goals and objectives of the policy. The goal of the policy is to keep employees safe and working; it is not, as the Employers highlighted here, to keep employees safe and not working. The object of the policy is to get the work done, safely, with as much of the existing employee complement as possible. It is not to get the work done with temporary replacements – employees who, if they could be found on such contingent terms, would then need to be oriented and/or trained and who would then, presumably, be subject to termination should circumstances, including the state of mind of the non-compliant, change – all while the Employers were attempting to cope with the greatest public health crisis ever faced. That, in my view, is not a less intrusive means of accomplishing the objectives of the policy; it is a less effective means of enforcing it. The disciplinary aspect of the policy was coercive and it was meant to be. The goal was to achieve compliance. [50] Central West was described in the following way in North Bay, supra:[5] The starting point for argument in this case was the recent Central West award. The award stands as a resounding precedent, based on a rigid review and analysis of the jurisprudence. It exemplifies the balancing of interests between employee rights and employer needs in the extraordinary circumstances under which mandatory vaccination policies were promulgated. The award distinguishes between the reasonableness of a mandatory vaccination requirement per se, and the reasonableness of its implementation in individual circumstances. That award definitively upholds an enforcement mechanism that includes potential termination from employment for non-compliance, while clarifying that the forum of the individual grievance is the appropriate place for consideration of individual consequences. [51] The arbitrator in North Bay, at para. 17 went on to hold that discipline is contemplated by the mandatory vaccination policy in that case. Without an enforcement mechanism, the policy becomes a “mere suggestion and enforcement a mere ideal”. The arbitrator held at para. 18 that extending a leave of absence would not constitute a less intrusive means of enforcing the policy. The employer’s critical interest is the operation of its services and delivery of those services to the public which is not an interest that can be served with employees remaining on leave.
[52] In a June 6, 2024 award (released after the Decision), Arbitrator Andrew Tremayne upheld the reasonableness of Humber’s mandatory COVID-19 vaccination policy – the same policy at issue in this judicial review - in the context of a policy grievance brought by a different union. In doing so, he observed that both Central West and Lakeridge were “on all fours” with the matter before him, finding that there were “few, if any material differences” between Humber and the healthcare employers in Lakeridge and Central West.[13]
[53] Teamsters correctly points out that decisions issued after the Arbitrator’s Decision which were not presented to her cannot make the Decision unreasonable. However, the fact remains that this Decision is the one outlier in the arbitral decisions before and after it which have all ruled that in the COVID-19 context, non-compliance with a reasonable vaccination policy was a basis for discipline.
[54] While discipline may never be appropriate in a normal scenario for the failure to take medicine or be vaccinated, the Amended Policy was issued in the context of a pandemic that had caused a significant number of deaths and life-threatening illnesses, both of patients and staff who worked in the hospital and continued to do so. Unvaccinated employees posed greater risks not only for themselves but for all employees, patients and their families who might be exposed to unvaccinated employees.
[55] In finding that non-compliance with a mandatory vaccination policy can never be met with discipline because these policies engage an employee’s right to consent to medical treatment and/or disclose medical information, the Arbitrator failed to engage in any balancing of Humber’s duty to protect its patients, staff and visitors against the significant health and safety risks associated with the COVID-19 virus as required by KVP and Irving.
[56] Other than this Decision, no COVID-19 mandatory vaccine case supports that a mandatory vaccination policy can never be met with discipline. Central West cites 12 COVID-19 cases that support, expressly or impliedly that a refusal to be vaccinated can be the subject of discipline. Lakeridge explicitly considered and rejected the argument that discipline is never an appropriate response to an employee’s exercise of their right to refuse medical treatment. Central West found that there is no question that non-compliance with an otherwise reasonable COVID-19 mandatory vaccination policy – a refusal to be vaccinated unsupported on medical or human rights grounds – can be the subject of discipline.[14] Central West exemplifies the balancing of interests called for by KVP and Irving between employee rights and employer needs in the extraordinary circumstances under which mandatory vaccination policies were promulgated. The award distinguishes between the reasonableness of a mandatory vaccination requirement per se, and the reasonableness of its implementation in individual circumstances. That award definitively upholds an enforcement mechanism that includes potential disciplinary termination from employment for non-compliance, while clarifying that the forum of the individual grievance is the appropriate place for consideration of individual consequences.
[57] In this case, the Arbitrator applied a general principle regarding medical consent rights reached in a different context to find that a hospital worker’s refusal to provide proof of vaccination during the COVID-19 global health pandemic can never form the basis of a disciplinary response by the employer because it engaged the employees’ medical consent rights. In applying the general principle in this situation, the Arbitrator failed to consider that Humber was under a legal obligation to ensure compliance with its vaccination policy and that the exigent circumstances of the COVID-19 pandemic required a balancing of the safety risks posed to the hospital’s patients and staff against the individual employee’s privacy interest. In this respect, the Arbitrator’s Decision was unreasonable. . Humber River Health v. Teamsters Local Union No. 419
In Humber River Health v. Teamsters Local Union No. 419 (Div Ct, 2025) the Divisional Court dismissed an employee's JR, here from Arbitrator's grievance-supporting findings that the employer "terminated their employment for cause in February 2022 for failing to comply with Humber’s mandatory vaccination policy issued during the pandemic".
Here the court cites a public hospital COVID vaccination 'directive':[39] Directive #6 issued by the Chief Medical Officer of Health for Ontario for Public Hospitals required Humber as a public hospital within the meaning of the Public Hospitals Act and other covered organizations not only to establish and implement a COVID- 19 vaccination policy but to ensure compliance with it. The introduction to Directive #6 provides in part:There are many health care workers (HCW) in higher risk settings (e.g., public hospitals, home or community service settings, paramedics in ambulances, etc.) who remain unvaccinated and are posing risks to patients and other HCWs as well as to the health care system capacity due to the potential (re) introduction of COVID-19 in those settings. In addition to these concerns, the prevalence of the Delta variant of concern globally and within Ontario, has increased transmissibility and disease severity than previous COVID-19 virus strains. There is, therefore, an immediate risk to patients within hospitals and home and community care settings who are more vulnerable and medically complex than the general population, and therefore more susceptible to infection and severe outcomes from COVID-19.
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