Is It Reasonable for an Employer to Mandate That Their Workers Be Vaccinated?
By: RBS LawyersBC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258, 2022 CanLII 25764 (BC LA) is the first case in BC to consider a mandatory COVID-19 vaccination policy that does not provide a testing alternative to vaccination.
The case arose from the introduction of a COVID-19 mandatory vaccination policy (the “Policy”) in October 2021 by BC Hydro and Power Authority (“BC Hydro”). BC Hydro is a Crown Corporation that is established by statute and subject to regulatory requirements. Its key mandate is to generate, transmit, and distribute power throughout the province. BC Hydro employed approximately 6,600 employees at the time the decision came down. Of those 6,600 employees, about one third of them were represented by the IBEW, Local 258 (the “Union”) and as of February 2022, there were 1,744 active employees in the IBEW bargaining unit. Both parties agreed that BC Hydro provided an essential service.
BC Hydro took the position that the Policy is about maintaining a safe workplace for its employees as well as protecting the safety of customers, contractors, and other persons with whom BC Hydro employees come into contact.
For the Union, the Policy was problematic since it not only involved health and safety issues, but the livelihood of those employees that were not vaccinated.
The collective agreement between the parties does not include any provisions about vaccinations, and prior to the introduction of the Policy, BC Hydro did not require bargaining unit employees to obtain any kind of vaccination.
BC Hydro implemented a variety of health and safety measures throughout the pandemic to reduce the risk of transmission of the COVID-19 virus. Some of these safety measures were met with concerns by some employees in the IBEW bargaining unit. None of these measures eliminated the COVID-19 virus among BC Hydro employees, although they were somewhat effective.
BC Hydro initially rejected the idea of a mandatory vaccination policy, however, later in 2021 some BC Hydro employees expressed an interest in mandatory vaccination so they would be protected from infection by coworkers. In addition, some third parties began requesting only vaccinated BC Hydro employees attend their premises. This generated the landscape for BC Hydro to create the Policy on October 7, 2021. The Policy became effective on October 21, 2021. The Policy applied to all BC Hydro employees.
Summarily, the Policy required that all BC Hydro employees have at least one dose of a COVID-19 vaccine approved by Health Canada and show, or be prepared to show, proof of vaccination to BC Hydro or its representative by November 22, 2021. Employees were required to show or be prepared to show proof of full vaccination to BC Hydro or its representative before 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.
On November 16, 2021 the Union filed a grievance which led to an arbitration. Employees who were not fully or partially vaccinated, or refused to provide proof of vaccination, were placed on an unpaid leave of absence on November 23, 2021. Additional employees who refused to become fully vaccinated, or refused to provide proof of vaccination, were placed on an unpaid leave of absence on or around January 10, 2022.
The Issue
Is it reasonable for an employer to mandate that their workers be vaccinated?
The Decision
The arbitrator found that it was reasonable in the context of this case for BC Hydro to require their employees to be vaccinated against COVID-19.
The arbitrator balanced the interests of the affected employees of BC Hydro who had not complied with the requirement of being fully vaccinated against the interests of BC Hydro and the interests of fellow employees, contractors, customers, and others who the unvaccinated employees may interact with. The arbitrator took into account the fact that BC Hydro has a high responsibility to the public as the primary provider of electrical power in the province.
The arbitrator weighed this information against the significant intrusion on the 44 unvaccinated employees’ privacy and imposition on their freedom to regulate medical treatment and injections into their body.
Ultimately, the arbitrator found that the Policy was reasonable since BC Hydro is required to maintain a safe and healthy workforce so that it can carry out its significant obligations as an essential service provider of power to the residents and businesses of the province. The arbitrator found that BC Hydro also had a responsibility to protect the interests of their other employees who must be kept safe in the workplace, as well as contractors, customers and other persons who come into contact with BC Hydro employees.
The arbitrator found that the interests that led to the Policy outweighed the significant intrusion on the interests of the 44 employees who chose not to be vaccinated.
There was, however, one exception to the arbitrator’s conclusion that the Policy was reasonable. The Union argued that the discipline aspect of the Policy is coercive and should render the Policy unreasonable. The arbitrator agreed that the possibility of discipline may be more coercive than only the consequence of being on unpaid leave.
The arbitrator found that the sentence in the Policy that contemplated future discipline for continuing with the decision to refuse vaccination, placed the employee in jeopardy for the same conduct for which BC Hydro chose not to impose discipline. He found that this was unfair and unreasonable in these circumstances.
The arbitrator found that the sentence referring to discipline for continuing to be unvaccinated was unreasonable at the time he rendered his decision, and should be struck from the Policy. BC Hydro still had the option to consider discipline in cases were an employee’s conduct warrants it, other than remaining unvaccinated. But, these various factors led the arbitrator to conclude that, at the time of the decision, the Policy should not include discipline for declining vaccination.
Based upon this case, it appears that many factors have to be taken into consideration when determining if it is reasonable for an employer to mandate that their workers be vaccinated, including, but not limited to, the interests of the parties, the services provided by the employer, and whether a testing alternative has been made available.
For more information about this post, or if you have any questions arising from this decision, email Employment & Human Rights Lawyer, Salona Nainaar, at snainaar@rbs.ca or call at 604.661.9243.
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Employers Beware – if you are contemplating retracting an offer of employment from a potential candidate you might want to think again in light of the recent B.C. court decision of Buchanan v. Introjunction Ltd., 2017 BCSC 1002. In this case, the B.C. Supreme Court found that the plaintiff employee was wrongfully dismissed when his employment was terminated shortly after his contract of employment with the defendant employer was executed but before he actually started work. The Court awarded him 6 weeks’ severance pay.
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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.
