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24 April 20225 minute read

B.C. arbitrator supports mandatory vaccination policy

A British Columbia arbitrator recently upheld a workplace policy requiring all employees to be vaccinated against COVID-19. This case was the first in British Columbia to consider a mandatory COVID-19 vaccination policy that did not provide a testing alternative to vaccination.

In BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258, Arbitrator Somjen found that BC Hydro’s compulsory vaccination policy was reasonable as it aligned with BC Hydro’s duty to protect the health and safety of its workforce. As an essential service provider, BC Hydro was reasonably required to ensure it had sufficient employees to provide such services. 

The decision

In October 2021, BC Hydro unilaterally implemented a mandatory COVID-19 vaccination policy (the “Policy”), citing the continuing spread of COVID-19 and the variants that posed a threat to the health and safety of BC Hydro’s employees and British Columbians in general. All BC Hydro employees were asked to get their first dose by November 22, 2021 and be fully vaccinated by January 10, 2022. Those employees who failed to become fully vaccinated would be placed on an unpaid leave of absence, subject to an approved accommodation on human rights grounds. 44 employees were eventually placed on unpaid leave for failing to comply with the Policy.

The IBEW, Local 258, which represents about one-third of BC Hydro’s employees, filed a grievance against the Policy. The IBEW argued that the Policy was overly intrusive and that BC Hydro did not need to take the step of requiring vaccination because the other safety precautions taken to that point were effective.

Arbitrator Somjen concluded that the Policy was reasonable and dismissed the grievance. In reaching this conclusion, the arbitrator found that the health and safety interests that led to the Policy outweighed the “significant intrusion” on the interest of the employees to freely choose to be vaccinated or not. 

Key take-aways for employers

This conclusion is undoubtedly a victory for employers across British Columbia who have implemented a similar mandatory COVID-19 vaccination policy, or who are contemplating doing so. This decision provides compelling support for the propositions that:

(i) vaccination is the best measure for preventing transmission of COVID-19 in the workplace, reducing the risk of infection and reducing the severity of the illness;

(ii)  an employer’s duty to maintain a safe and healthy workforce may include requiring employees to be vaccinated; and

(iii) although BC Hydro had experienced significant problems with COVID-19 in its workplace, employers generally do not have to wait until the negative consequences of COVID-19 are felt in their particular workplace before implementing a policy to counteract the virus. A precautionary approach to the pandemic is justifiable.

However, Arbitrator Somjen was careful to note that determining whether a mandatory COVID-19 vaccination policy is reasonable is a highly fact specific analysis. What may be permissible in one workplace might not be permissible in another. For example, some factors particular to BC Hydro’s workplace that contributed to the Policy being reasonable were:

  • most employees were unable to regularly work from home;
  • many employees worked in industrial camp settings with shared accommodations, which had been previously targeted as high risk by the Chief Provincial Health Officer;
  • travelling far distances in shared vehicles was commonplace;
  • there had been previous COVID-19 outbreaks in the workplace, which BC Hydro argued contributed to the death of two spouses of BC Hydro employees; and
  • BC Hydro was an essential service provider that needed an adequate workforce to meet its mandate to maintain power to British Columbians.

Finally, the permissibility of an employer’s COVID-19 vaccine policy may be heavily impacted by the COVID-19 climate at the time of adjudication. The dynamic nature of the pandemic and public health guidance are relevant factors in what constitutes a reasonable mandatory vaccination policy. While cases such as BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258 may be helpful, the overall circumstances in the local community and at the specific workplace in question will likely hold more weight than what adjudicators have decided in other vaccination policy cases. Consequently, despite this decision, employers should regularly review and revise their COVID-19 vaccine policies to ensure the policy accurately reflects their particular circumstances and the most current public health guidance in their sector.

As the COVID-19 landscape continues to evolve, please consult any of the members of the DLA Piper Canadian Employment and Labour Law Service Group listed here for further information and advice relating to COVID-19 and vaccination policies. 

 

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.

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