A recent arbitration decision, BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258, 2022 CanLII 25764 (BC LA), determined that BC Hydro’s mandatory vaccine policy was reasonable but the threat of discipline against those who remained unvaccinated was not.
The decision is the first in BC to consider a mandatory COVID-19 vaccination policy that does not provide a testing alternative to vaccination.
On October 5, 2021, the BC Provincial government announced a plan to mandate vaccines for all public service employees, effective November 22, 2021. The same day, BC Hydro notified all employees it was considering mandatory vaccines. Two days later, BC Hydro issued its mandatory vaccine policy to take effect on October 21, 2021.
The policy required employees to have their first vaccine dose by November 22, 2021 and their second vaccine dose by January 10, 2022. Employees who were unable to receive a COVID-19 vaccine for a reason related to a protected ground in the BC Human Rights Code could request a workplace accommodation. Employees without a workplace accommodation, who refused to disclose their COVID-19 vaccination status or refused to provide proof of vaccination, were placed on an unpaid leave of absence effective November 23, 2021 until they provided proof of vaccination. The policy also included discipline up to and including termination of employment for employees who remained unvaccinated.
In response to the policy, the union filed a grievance on behalf of its 44 members placed on unpaid leave.
Arbitrator must balance the interests of the employees and the employer
To assess whether the vaccine policy was reasonable, the arbitrator had to balance the interests of the 44 affected unvaccinated employees and the interests of fellow employees, contractors, customers and others with whom unvaccinated employees may be in contact.
The arbitrator acknowledged the policy amounted to a significant intrusion on an employee’s privacy and freedom to regulate medical treatments and injections into their body, and that an unpaid leave is a significant and coercive burden on affected employees.
However, the arbitrator weighed the employees’ interests against the consideration that BC Hydro is an essential service and is required to maintain a safe and healthy workforce so that it can maintain an uninterrupted power supply to the residents and businesses of the province.
Preventative measures were not a reasonable alternative
The union argued the vaccine policy was unnecessary because less intrusive measures, such as rapid antigen testing, were available and that other preventative measures already in place were effective. The arbitrator did not agree.
The arbitrator referenced the recommendations of BC’s Provincial Health Officer, Dr. Bonnie Henry, as evidence that rapid antigen testing could not be considered equivalent to vaccination.
Further, BC Hydro provided evidence that about 50% of its employees had tested positive or were suspected positive for COVID-19 during the pandemic, and the union acknowledged 11% of the bargaining unit tested positive even after the vaccine policy was implemented.
The arbitrator also cited examples of outbreaks at other BC Hydro facilities, a contractor working on a BC Hydro project and two spouses of BC Hydro employees who died of COVID-19, and BC Hydro employees who required hospitalization or who experienced “Long COVID”.
All of this evidence suggested that COVID-19 was still affecting BC Hydro employees, contractors and related persons even with significant preventive measures and the vaccine policy in place.
The arbitrator also discussed the characteristics of the employees in the bargaining unit. Specifically, the employees stay in work camps and share accommodation, meals and recreation with other employees and contractors. As well, although many employees work outside, the employees still travel together in vehicles, work together in close environments, and in some instances cannot wear masks for safety reasons. In addition, employees come in contact with contractors, customers and other members of the public.
Based on the characteristics of the employees’ workplace, the arbitrator determined vaccination was the most effective method of mitigating the risks of COVID-19.
Discipline or termination was unreasonable
The arbitrator determined that requiring proof of vaccination was reasonable but the threat of discipline was not. The arbitrator concluded that the penalty for non-compliance with the policy did nothing to further the employer’s health and safety concerns because the unvaccinated employees were on already on unpaid leave and were therefore not presenting any health or safety issues for BC Hydro. Thus, BC Hydro had achieved its health and safety goal of having only vaccinated employees at work.
The arbitrator also noted that due to the dynamic nature of the pandemic and likely changes to public health policies, the vaccine policy may be revised to allow unvaccinated employees to return to work. Therefore, he determined that disciplining employees for continuing to be unvaccinated was an unreasonable response to non-compliance with the policy.
We note that the few decisions which have been rendered on vaccine policies are very specific to the workplaces and collective agreements in which the issue arose. Please don’t hesitate to contact our firm if we can provide advice about how this or other decisions may impact your workplace.