In BC Hydro and Energy Authority and IBEW, Native 258, Re, 2022 CarswellBC 837, Arbitrator Gabriel Somjen determined that the necessary vaccination coverage of BC Hydro, British Columbia’s major electrical energy provider, was fairly essential to justify the numerous intrusion on its staff’ bodily integrity and medical privateness.  He determined, nevertheless, that the self-discipline facet of the coverage was unreasonable and must be severed. 

Background

BC Hydro, a Crown company, is a vital service. One-third of its staff are within the union’s bargaining unit (IBEW Workers).  Their collective settlement (CA) is silent relating to vaccinations.  The vast majority of IBEW Workers can’t work at home.  A big quantity work “within the area” and a few in an indoor closed setting.  Those that usually work outdoors generally work in a crew or along with contractors.  Others work in distant locations and share lodging, meals, and recreation.  Some work procedures require IBEW Workers to work in shut proximity. 

As of January 18, 2022, there had been greater than 3,505 suspected or confirmed instances of COVID-19 in BC Hydro’s workforce, and three office outbreaks because the begin of the pandemic.  On October 5, 2021, the federal government of British Columbia introduced it deliberate to mandate vaccines for the general public service efficient November 22, 2021.  On October 7, BC Hydro created a compulsory vaccination coverage (Coverage) that utilized to all of its staff.  The Coverage supplied, amongst different issues, that:

  • Efficient November 22, 2021, all staff had been required to have not less than one dose of a Well being Canada authorized vaccine, and be absolutely vaccinated earlier than January 10, 2022. 
  • Workers who did not get their first dose or to be granted an lodging by November 22, 2021, can be positioned on an unpaid depart of absence efficient November 23, 2021, till they may present proof of vaccination confirming their first dose had been acquired;
  • Workers who refused to reveal their vaccination standing or refused to offer proof of vaccination, can be positioned on unpaid depart of absence efficient November 23, 2021, till they confirmed proof of vaccination; and
  • Workers who stay unvaccinated could also be topic to self-discipline as much as and together with termination of their employment. 

Roughly 44 staff who weren’t absolutely or partially vaccinated, or refused to offer proof of vaccination, had been positioned on unpaid depart on November 23, 2021.  No staff had been terminated for non-compliance with the Coverage. 

Grievance

The union filed a grievance, which required the arbitrator to find out whether or not the Coverage is cheap, and, in that case, whether or not the portion of the Coverage regarding self-discipline is cheap.  In its grievance, the union argued:

  • Much less intrusive measures comparable to fast antigen testing or different mitigating measures ought to have been thought-about.  As a result of such measures weren’t tried, the Coverage is an unjustified intrusion of the staff’ medical privateness and an unreasonable train of administration rights;
  • The prevailing well being and security measures BC Hydro took had been already profitable and there was low office transmission;
  • The specter of self-discipline or termination made the Coverage extra coercive and intrusive than if unvaccinated staff had been solely positioned on an unpaid administrative depart till the pandemic subsided; or
  •  The self-discipline and termination portion of the Coverage renders it unreasonable and that portion must be struck down. 

Award

Reasonableness of the Coverage

The arbitrator concluded that the Coverage is cheap as a result of the pursuits underlying it outweigh the numerous intrusion on the pursuits of the 44 staff.  In conducting his evaluation, Arbitrator Somjen made the next observations:

  • In assessing the Coverage’s reasonableness, the pursuits of the 44 staff have to be balanced towards the pursuits of the employer, and the pursuits of fellow staff, contractors, clients and others with whom unvaccinated staff might keep up a correspondence. 
  • As a vital service supplier of energy, BC Hydro has a excessive duty to the general public to keep up a secure and wholesome workforce in order that it will possibly perform its vital obligations.
  • Underneath part 21(1) of BC’s Employees Compensation Act (WCA), each employer should: (1) make sure the well being and security of all staff for that employer, and another staff current on the office at which that employer’s work is being carried out; and (2) adjust to the Occupational Well being and Security provisions, rules and orders.  Workers even have the responsibility underneath the WCA to guard their well being and security in addition to that of different staff. 
  • The required vaccination underneath the Coverage is a major intrusion on an worker’s bodily integrity and privateness and, to justify this vital intrusion, the employer ought to be capable to reveal that necessary vaccination was fairly essential to counterbalance the staff’ pursuits.

The arbitrator disagreed with the union’s argument that there had been low office transmission.  He acknowledged that however the numerous mitigating measures, even after the Coverage was in place, BC Hydro was experiencing vital issues with COVID-19, together with half of its staff suspected or confirmed contaminated, 11% of the bargaining unit testing constructive, the demise of a contractor and the spouses of two staff, the hospitalization of some staff, and a few staff experiencing “Lengthy COVID.” Moreover, the arbitrator emphasised that an employer shouldn’t have to attend till destructive penalties of COVID have an effect on its staff, contractors and associated individuals earlier than implementing a coverage; it was entitled to take a precautionary method.    

The arbitrator agreed that “merely to align with the Province’s coverage wouldn’t justify BC Hydro doing the identical.” However whereas that was certainly an element, there have been different the reason why BC Hydro required vaccination, together with however not restricted to the truth that some staff had been asking to be assured that different staff can be vaccinated, and that some third events required vaccination for entry. 

Moreover, the arbitrator emphasised that it’s “uncontroverted” that vaccination is the simplest software for stopping COVID transmission, and decreasing its severity, the chance of hospitalization, and demise. Fast antigen testing is unreliable and never equal to necessary vaccination.

Subsequent, the arbitrator noticed that almost all bargaining unit staff and not one of the 44 staff had been capable of commonly work at home. He famous that vaccination is the simplest technique of mitigating the dangers of COVID within the circumstances the place a few of these staff work and journey in shut contact with different staff, contractors, clients, and different members of the general public.

Self-discipline

Arbitrator Smojen agreed with the union that the self-discipline and termination provision of the Coverage was extra coercive than the consequence of being positioned on unpaid depart.  Though he determined that the self-discipline facet of the Coverage was unreasonable and it must be severed from the Coverage, the arbitrator didn’t agree with the union that it ought to render the whole Coverage unreasonable.  The arbitrator emphasised that the employer had achieved its well being and security aim of getting solely vaccinated staff working within the bargaining unit when it put the unvaccinated staff on unpaid depart, and the addition of potential self-discipline wouldn’t additional that aim.  Arbitrator Smojen famous additionally that BC Hydro didn’t self-discipline the 44 staff it had positioned on unpaid depart, and moreover, that if the pandemic subsides the Coverage could also be amended to permit the 44 staff to return to work.

Backside Line for Employers

BC Hydro is one other instance of an arbitrator deciding that whereas a compulsory vaccination coverage is a major intrusion on an worker’s bodily integrity and privateness, it’s justified and affordable as a result of the employer has a statutory obligation to make sure the well being and security of its staff.  In line with this arbitrator, given this statutory obligation, employers wouldn’t be conducting themselves fairly by utilizing unreliable fast antigen testing as a method of controlling transmission, as it’s “uncontroverted” that vaccination does so most successfully. 

As now we have seen in different arbitration awards, context is necessary when arbitrators analyze the reasonableness of a coverage. The arbitrator in BC Hydro acknowledged that as a vital service supplier of electrical energy, the employer had an obligation to keep up a secure and wholesome workforce in order that it might present energy within the province.  One other issue that influenced the arbitrator was that the unvaccinated staff don’t work commonly from residence, however do work and journey in shut contact with different staff, contractors, and members of the general public. 

Notably, in deciding that the self-discipline facet of the Coverage was unreasonable and must be severed, this arbitrator differed from different arbitrators who’ve thought-about that difficulty.  The burden of authority appears to be {that a} vaccination coverage that contemplates the potential of self-discipline or termination for non-compliance is cheap, supplied the employer warns the worker that their employment might be terminated upon refusing to adjust to the coverage, inquires about particular person circumstances and, when possible, accommodates these circumstances.      

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