Arbitrator finds termination of non-vaccinated Quinte Health nurses ‘unreasonable’

Belleville General Hospital – Photo via Quinte Health

Unvaccinated Quinte Health nurses should not have been terminated during the COVID-19 pandemic, and should be given their jobs back if they want them, an arbitrator has ruled in relation to a grievance filed by the Ontario Nurse’s Association (ONA).

Sole Arbitrator James Hayes came to a decision on the matter on Feb. 28, ruling that the termination of 10 area nurses who did not get vaccinated for COVID-19 in 2022 and 2023 was unreasonable. Instead, he said he believes the nurses should have been given an unpaid leave of absence.

Zoom hearings on the matter were held on the matter April 26, July 4, and Nov. 2, 16 and 30, 2023, as well as Jan. 25, 2024.

The Ontario Nurse’s Association argued that the vaccine policy and employee terminations were unreasonable.

“Quinte [Health] knew or ought to have known by Summer 2021, and certainly by the time of the terminations, that vaccination did not effectively prevent transmission,” reads a summary of their report. “The Employer failed to consider whether important and relevant factors like prior infection and available alternatives would contribute to health and safety goals.” 

Had the hospital taken a leave of absence approach instead, the ONA argued, it would have become clear that there was no reasonable scientific basis to exclude unvaccinated employees from the workplace and that they should be recalled.

“The Hospital’s failure to review the Policy and amend it to reflect the changing realities of the pandemic and the evolving scientific evidence was unreasonable,” the union argued. “The Policy did not properly balance the individual interests of ONA members.”

The court also heard from Dr. Neil Rau, who argued that by the summer 2021, it was becoming clear that the COVID-19 vaccine was not preventing infection or re-infection.  Further, the greater the time elapsed since vaccination, the greater personal immunity wanes.  With the emergence of the Delta variant around the same time and the rise in breakthrough infections, it also became clear that the variants could evade immunity acquired through vaccination.  Dr. Rau agreed, however, that vaccines continue to limit the severity of disease including hospitalization and death.

Quinte Health maintained that mandatory vaccination was a reasonable means of protecting the health and safety of both its employees and patients. The organization said that “there is no serious legal or scientific dispute that a two-dose vaccine mandate as of the date the policy was introduced, was the single best method for reducing transmission and mitigating the seriousness of the effects of the illness”. 

They argued that a measure that reduces the severity of illness in its staff is an entirely appropriate measure for an employer to adopt. The Hospital was faced with “an unprecedented crisis,” and “was not required to rely upon less effective methods such as RAT and masking.”

The court heard from Susan Rowe, Vice-President, Communications & People, who served as Incident Commander for the Employer’s COVID response from early 2021 until early 2022. She advised that there were a number of factors that led Quinte Health to move to a mandatory policy by mid-September 2021, including safety, to reduce infection and spread and protect patients and staff; concern that virus spread would further and limit the number of people that could work at the hospital; and the fact that the vast majority in the community had chosen to be vaccinated and patients expected the people caring for them to be fully vaccinated.

Moreover, “if we did not terminate, we would have to hold positions for people and could only back fill those on a temporary basis,” Rowe testified. “It would have been challenging to recruit into and retain individuals with temporary roles.”

“The Hospital’s adoption of its Policy in September 2021 was well motivated, driven as it was by genuine safety concerns,” the ruling reads. “But that focus overwhelmed its obligation to balance employee interests.

“Nurses intent on remaining unvaccinated are a small minority everywhere, but their employee rights may not be ignored,” the ruling continues. “The evidence led in this case demonstrates clearly that automatic termination of non-compliant nurses was fundamental to the design of the Quinte Policy and was unreasonable.”

As such, Hayes said that the terminated nurses “should have been offered the option of an unpaid leave of absence and must, therefore, be reinstated as Quinte employees if that be their wish.”

He noted that “there has been a lot of water under the bridge since November 2021,” and that the experts relied upon by the hospital do not themselves agree upon when the mandatory vaccination policy should have been lifted, if at all.  Hayes also acknowledged that “the discharged nurses will have carried on with their personal and professional lives independently.”

As a result, he advised that the parties should meet to discuss their respective positions before any further litigation steps are taken.

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