Nurses fired for refusing 2 COVID-19 vaccines should not have been terminated, says arbitrator
An arbitrator concluded that nine Ontario nurses who were fired because they didn’t get two COVID-19 vaccinations should be given their jobs back, finding their termination to be “unreasonable”.
The workers were fired by their employers, Quinte Health, for violating their employers’ vaccination policy.
Arbitrator James Hayes noted that, under Quinte’s policy, employees and physicians who did not submit proof of at least one dose of a two-dose vaccination series or did not have an approved exemption by Oct. 1, 2021, were placed on an unpaid leave until proof was provided, or alternatively, for a maximum of 14 days. The same requirements applied for a second dose by Oct. 31, 2021.
The vaccination policy also noted that “all options [would be] considered to effectively enforce the policy including unpaid leaves of absence, altering of employment status, termination of employment, and temporary or permanent loss of privileges for credentialed staff”.
The initial vaccine mandate was “well motivated, driven as it was by genuine safety concerns,” said Hayes in his decision on Quinte Health v Ontario Nurses Association, 2024 CanLII 14991.
However, the nurses “should have been placed on unpaid leaves of absence,” he said.
That would have allowed them to return to their jobs in case there were changes to the vaccination policy or their vaccination status.
The terminations meant the RNs had a "misconduct" for lack of compliance, which made it difficult for them to get a new nursing job. And because they were fired they would not be able to collect unemployment insurance or other support payments, he noted, according to a CTV News report.
In December 2023, a judge ruled that unpaid leave for vaccination refusal is not constructive dismissal.
Employer, ONA working on getting workers back on board
Hayes’s decision to offer the nurses their jobs back after the legal dispute on COVID-19 vaccination is a first in Ontario, said lawyer Howard Goldblatt, who represented the Ontario Nurses’ Association (ONA), in the CTV News report.
Goldblatt represented ONA in the case.
“I think it's an important decision,” he said.
“I'm hoping that, to the extent that we can get these nurses back into the workplace, the doors will be open and they'll come back,” said Goldblatt.
ONA and Quinte Health officials will discuss compensation for the lost years of work, he said.
Meanwhile, Catherine Walker, the manager of communications and community relations at Quinte Health, wrote to CTV News:
"Like many Ontario hospitals, Quinte Health put in place a mandatory vaccine policy during the pandemic as a proactive measure to protect healthcare workers, prevent transmission, maintain healthcare capacity, promote public health, and fulfill our ethical obligation to prioritize patient safety and well-being. The decision …..concluded the impacted nurses should have been put on an unpaid leave of absence. Quinte Health respects the arbitrator’s ruling and will work with our ONA partners on next steps.”
Previously, one worker was nearly disqualified from receiving employment insurance (EI) benefits due to refusal to be vaccinated.