Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In BC Hydro and Power Authority and IBEW, Local 258, Re, 2022 CarswellBC 837, Arbitrator Gabriel Somjen decided that the mandatory vaccination policy of BC Hydro, British Columbia’s primary electricity supplier, was reasonably necessary to justify the significant intrusion on its employees’ bodily integrity and medical privacy. He decided, however, that the discipline aspect of the policy was unreasonable and should be severed.
BC Hydro, a Crown corporation, is an essential service. One-third of its employees are in the union’s bargaining unit (IBEW Employees). Their collective agreement (CA) is silent regarding vaccinations. The majority of IBEW Employees cannot work from home. A significant number work “in the field” and some in an indoor closed environment. Those who generally work outside sometimes work in a crew or together with contractors. Others work in remote places and share accommodations, meals, and recreation. Some work procedures require IBEW Employees to work in close proximity.
As of January 18, 2022, there had been more than 3,505 suspected or confirmed cases of COVID-19 in BC Hydro’s workforce, and three workplace outbreaks since the start of the pandemic. On October 5, 2021, the government of British Columbia announced it planned to mandate vaccines for the public service effective November 22, 2021. On October 7, BC Hydro created a mandatory vaccination policy (Policy) that applied to all of its employees. The Policy provided, among other things, that:
- Effective November 22, 2021, all employees were required to have at least one dose of a Health Canada approved vaccine, and be fully vaccinated before January 10, 2022.
- Employees who failed to get their first dose or to be granted an accommodation by November 22, 2021, would be placed on an unpaid leave of absence effective November 23, 2021, until they could provide proof of vaccination confirming their first dose had been received;
- Employees who refused to disclose their vaccination status or refused to provide proof of vaccination, would be placed on unpaid leave of absence effective November 23, 2021, until they showed proof of vaccination; and
- Employees who remain unvaccinated may be subject to discipline up to and including termination of their employment.
Approximately 44 employees who were not fully or partially vaccinated, or refused to provide proof of vaccination, were placed on unpaid leave on November 23, 2021. No employees were terminated for non-compliance with the Policy.
The union filed a grievance, which required the arbitrator to determine whether the Policy is reasonable, and, if so, whether the portion of the Policy relating to discipline is reasonable. In its grievance, the union argued:
- Less intrusive measures such as rapid antigen testing or other mitigating measures should have been considered. Because such measures were not attempted, the Policy is an unjustified intrusion of the employees’ medical privacy and an unreasonable exercise of management rights;
- The existing health and safety measures BC Hydro took were already successful and there was low workplace transmission;
- The threat of discipline or termination made the Policy more coercive and intrusive than if unvaccinated employees were only placed on an unpaid administrative leave until the pandemic subsided; or
- The discipline and termination portion of the Policy renders it unreasonable and that portion should be struck down.
Reasonableness of the Policy
The arbitrator concluded that the Policy is reasonable because the interests underlying it outweigh the significant intrusion on the interests of the 44 employees. In conducting his analysis, Arbitrator Somjen made the following observations:
- In assessing the Policy’s reasonableness, the interests of the 44 employees must be balanced against the interests of the employer, and the interests of fellow employees, contractors, customers and others with whom unvaccinated employees may be in contact.
- As an essential service provider of power, BC Hydro has a high responsibility to the public to maintain a safe and healthy workforce so that it can carry out its significant obligations.
- Under section 21(1) of BC’s Workers Compensation Act (WCA), every employer must: (1) ensure the health and safety of all workers for that employer, and any other workers present at the workplace at which that employer’s work is being carried out; and (2) comply with the Occupational Health and Safety provisions, regulations and orders. Employees also have the duty under the WCA to protect their health and safety as well as that of other workers.
- The required vaccination under the Policy is a significant intrusion on an employee’s bodily integrity and privacy and, to justify this significant intrusion, the employer should be able to demonstrate that mandatory vaccination was reasonably necessary to counterbalance the employees’ interests.
The arbitrator disagreed with the union’s argument that there had been low workplace transmission. He stated that notwithstanding the significant mitigating measures, even after the Policy was in place, BC Hydro was experiencing significant problems with COVID-19, including half of its employees suspected or confirmed infected, 11% of the bargaining unit testing positive, the death of a contractor and the spouses of two employees, the hospitalization of some employees, and some employees experiencing “Long COVID.” Furthermore, the arbitrator emphasized that an employer should not have to wait until negative consequences of COVID affect its employees, contractors and related persons before implementing a policy; it was entitled to take a precautionary approach.
The arbitrator agreed that “merely to align with the Province’s policy would not justify BC Hydro doing the same.” But while that was indeed a factor, there were other reasons why BC Hydro required vaccination, including but not limited to the fact that some employees were asking to be assured that other employees would be vaccinated, and that some third parties required vaccination for access.
Additionally, the arbitrator emphasized that it is “uncontroverted” that vaccination is the most effective tool for preventing COVID transmission, and reducing its severity, the risk of hospitalization, and death. Rapid antigen testing is unreliable and not equivalent to mandatory vaccination.
Next, the arbitrator observed that most bargaining unit employees and none of the 44 employees were able to regularly work from home. He noted that vaccination is the most effective method of mitigating the risks of COVID in the circumstances where some of these employees work and travel in close contact with other employees, contractors, customers, and other members of the public.
Arbitrator Smojen agreed with the union that the discipline and termination provision of the Policy was more coercive than the consequence of being placed on unpaid leave. Although he decided that the discipline aspect of the Policy was unreasonable and it should be severed from the Policy, the arbitrator did not agree with the union that it should render the entire Policy unreasonable. The arbitrator emphasized that the employer had achieved its health and safety goal of having only vaccinated employees working in the bargaining unit when it put the unvaccinated employees on unpaid leave, and the addition of potential discipline would not further that goal. Arbitrator Smojen noted also that BC Hydro did not discipline the 44 employees it had placed on unpaid leave, and furthermore, that if the pandemic subsides the Policy may be amended to allow the 44 employees to return to work.
Bottom Line for Employers
BC Hydro is another example of an arbitrator deciding that while a mandatory vaccination policy is a significant intrusion on an employee’s bodily integrity and privacy, it is justified and reasonable because the employer has a statutory obligation to ensure the health and safety of its workers. According to this arbitrator, given this statutory obligation, employers would not be conducting themselves reasonably by using unreliable rapid antigen testing as a means of controlling transmission, as it is “uncontroverted” that vaccination does so most effectively.
As we have seen in other arbitration awards, context is important when arbitrators analyze the reasonableness of a policy. The arbitrator in BC Hydro recognized that as an essential service provider of electricity, the employer had an obligation to maintain a safe and healthy workforce so that it could provide power in the province. Another factor that influenced the arbitrator was that the unvaccinated employees do not work regularly from home, but do work and travel in close contact with other employees, contractors, and members of the public.
Notably, in deciding that the discipline aspect of the Policy was unreasonable and should be severed, this arbitrator differed from other arbitrators who have considered that issue. The weight of authority seems to be that a vaccination policy that contemplates the possibility of discipline or termination for non-compliance is reasonable, provided the employer warns the employee that their employment will be terminated upon refusing to comply with the policy, inquires about individual circumstances and, when feasible, accommodates those circumstances.