Article by: Gabrielle Berron-Styan, Graeme McFarlane + Andrew Nicholl
On March 21, 2022, Arbitrator Somjen upheld a mandatory COVID-19 vaccination policy in BC Hydro & Power Authority and International Brotherhood of Electrical Workers, Local 258.
The employer’s vaccination policy was found to be reasonable, except for language contemplating discipline for non-adherence to the policy. The arbitrator held that the express reference to discipline in the policy was excessive but contemplated that a termination could result at some future time.
The arbitrator’s decision is the first in British Columbia to consider a mandatory COVID-19 vaccination policy that does not provide a testing alternative to vaccination.
BC Hydro is the primary electricity supplier for the province of British Columbia. Employees in the bargaining unit represented by the IBEW perform critical work necessary to deliver electricity to British Columbia. The vast majority of IBEW employees cannot work from home, and are spread out throughout the province, including in remote areas.
On October 7, 2021, the Employer announced a COVID-19 vaccination policy (the “Policy”) requiring all employees to be fully vaccinated by January 10, 2022. Those who did not comply with the Policy were advised that they would be placed on an unpaid leave of absence and may be subject to discipline up to and including termination. The Policy provided a robust regime for accommodation based on human rights principles.
Shortly thereafter, the Union filed a policy grievance alleging that the Policy was an unreasonable exercise of management rights. In particular, the Union argued that the Policy was an unreasonable intrusion on employees’ medical privacy and there were less intrusive measures available to the Employer to prevent the spread of COVID-19 in the workplace. These included the existing employer health and safety measures (e.g. masking, physical distancing, etc.) and rapid antigen testing. The Union alternatively argued that the discipline and termination provisions of the Policy were coercive rendering the policy void.
Of note, and consistent with developments relating to COVID-19 over the past two years, the arbitrator highlighted the fact that policies such as the one before him “respond to a rare and unique pandemic and may be subject to change, just as the pandemic changes and public health guidance changes” (para. 36). The arbitrator also endorsed the comments of Arbitrator Mitchell in an Ontario COVID-19 mandatory vaccine policy case, Power Workers’ Union v Elexicon Energy Inc. (COVID-19 Vaccination Policy), 2022 CanLII 7228 (ON LA), regarding the “dynamic nature of the pandemic, public health guidance and these types of policies” (para. 46).
In upholding the Employer’s Policy as reasonable, the arbitrator held that it was “uncontroverted that the best measure for preventing transmission, reducing the risk of infection, reducing the severity of the illness and reducing the risk of hospitalization and even death, is vaccination” (para. 60). With respect to the specific characteristics of the bargaining unit at issue, the arbitrator held that “vaccination is the most effective method of mitigating the risks of COVID-19. All the other mitigating measures that BC Hydro introduced may have some positive effect, but none are as effective as vaccination” (para. 68).
The arbitrator found that employers are not required to wait until the negative consequences of COVID-19 are felt before implementing an appropriate policy to counteract the virus (para. 54). Further, the arbitrator rejected the Union’s argument that existing health and safety measures that BC Hydro took were sufficient (paras. 47-48). Instead, he found that “notwithstanding the significant mitigating measures that BC Hydro took, even after the Policy was in place, COVID-19 was affecting its employees, contractors and related persons” (para. 53). The arbitrator observed that “11% of the IBEW bargaining unit tested positive” which “suggests a significant degree of infection among these employees, even after the Policy was implemented” (para. 50).
Notably, the arbitrator rejected the Union’s assertion that rapid antigen testing was an equivalent alternative to vaccination (para. 62). The arbitrator held that “[r]apid antigen testing, particularly during the time of the Omicron variant’s ascendency, has proven to be unreliable in determining whether an asymptomatic person has COVID-19” (para. 62). The arbitrator noted that while testing may be helpful as an adjunct to vaccination, it could not be considered as equivalent to mandatory vaccination.
Further, and unlike in a somewhat similar Ontario decision (which also involved an energy distributor providing essential services), the arbitrator refused to carve out an exception to the Policy for employees in the bargaining unit based on where they worked.
Finally, although the arbitrator found the Policy to be reasonable, he struck down the provision referring to the potential discipline of employees who refused to become vaccinated. Employees who had chosen not to vaccinate had been placed on unpaid leave and were therefore not presenting any health or safety issues for BC Hydro. However, he also found that “the employer, at some time in the future, may have reason to terminate an unvaccinated employee for non-culpable reasons” with the appropriate arbitral review (para. 90).
Implications for Employers
This is an important case relating to the ability of employers to do everything reasonably practicable to keep their employees safe and to keep their operation running, particularly where essential services are at issue. It highlights the importance of careful consideration during this unprecedented time and that employers are not required to wait until a situation causes problems before acting so as to reduce risk. It is clear that mandatory vaccine policies will always be decided on their own facts, based on the nature of the work and workplace at issue, the risk posed by COVID-19 to that workplace, and the particular balance between employee and employer interests in a given situation. However, in this decision, the arbitrator confirmed that there are workplaces where employers are entitled to use vaccines as the best measure available to reduce the multiple risks associated with COVID-19.
Graeme McFarlane, Christopher Munroe, Andrew Nicholl and Gabrielle Berron-Styan were counsel for BC Hydro in BC Hydro v. IBEW Local No. 258 (Policy Grievance – Mandatory Vaccination),  BCCAAA No. 209.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.