Vaccine termination overturned but empty victory
Carol had worked at an Ontario hospital for 17 years and two weeks when the pandemic began in March 2020. She was a child and youth counsellor.
Before she could take the job in 2003 she had to prove she was immunized for mumps, measles and rubella, show proof of a negative tuberculosis test and complete a preplacement health review.
Carol was part of a multidisciplinary team including psychiatrists and social workers. She ran groups and worked with families. She provided direct front-line care to children and adolescents. This was not a job that could have been done remotely.
At the end of August 2021 the hospital announced it was instituting a mandatory COVID-19 vaccination policy. Its stated goal was to protect patients and visitors, including the most vulnerable, such as children who could not yet be vaccinated as a result of their age. The other goal was to protect staff so they could continue to fulfil their critical care role.
Everyone had to receive a first vaccination by Sept. 8, a second by Oct. 8 and 14 days must have passed after the second vaccination by Oct. 22.
The policy said that anyone who failed to comply could face discipline, including termination. Until someone was fully vaccinated and had fulfilled their 14-day wait period, they had to do COVID-19 tests three times a week. After Oct. 22, clear COVID-19 tests would not be accepted in lieu of vaccination.
The hospital stated that unless a valid human rights exception had been proven by the employee, they would be placed on an unapproved, unpaid leave of absence until all the conditions had been met for vaccination. On Oct. 15, Carol was pulled into a meeting of management where she admitted she understood the policy and had read the multiple communications about it. She also confirmed she was not immunized and was not planning to receive even her first dose of the vaccine. She was told in the meeting that she would be terminated as of Oct. 22 and that is what happened.
Carol was in a union and it grieved her termination.
The union did not argue that the policy was unreasonable and did not challenge the science behind COVID-19 vaccinations. Carol had been partially compliant. She had done the COVID-19 tests as long as they were allowed. She had told the employer she had great anxiety about getting vaccinated and was not ready to consent yet. She told her manager that her husband was adamantly opposed to vaccination and she felt she had to choose between her career and her marriage. The union argued that these factors differentiated Carol from a typical case of insubordination.
Ultimately, the arbitrator decided that the employer had been precipitous and should have used progressive discipline. After all, its policy did mention that people might be put on an unpaid leave. The arbitrator thought that some sort of progressive discipline would have given Carol a chance to mend her ways and she deserved that chance given her many years of loyal service. The arbitrator ordered that her termination was rescinded and replaced by a 30-day suspension.
But it was a pyrrhic victory. By early 2024, when the case finished being heard, Carol was still unvaccinated and the hospital’s policy remained in place. No monies were ordered to be paid to Carol. She could not return to work so there was no wage loss.
This article was originally published by The Hamilton Spectator.
