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A Tale of Two Policies: Arbitration Decisions Diverge on Vaccine Mandates in BC 

By Kristen Shaw  

During the course of the pandemic, and as vaccinations became widely available, we have seen many employers taking the step of implementing vaccination policies. The fundamental goal for the policies was health and safety of employees in the workplace. What is interesting about the policies that we have seen is that they are not all the same in content and tend to differ drastically depending on the workplace.

Not surprisingly, the implementation of vaccination policies was met with resistance by many employees and has led to litigation over whether such policies are valid. We are now starting to see decisions being rendered on vaccination policies, and like the vaccination policies themselves, the decisions can vary drastically depending on the policy. Two recent decisions from British Columbia highlight that divergence.

Background

The first decision concerns the mandatory vaccination policy from the British Columbia Hydro and Power Authority (“BC Hydro”). The vaccination policy in that case required all employees be fully vaccinated against COVID-19.¹ It did not provide alternatives to vaccination. BC Hydro instituted the policy in response to interest from other employers and third parties attended by BC Hydro employees, as well as the risks of outbreaks at remote camps. As a result of this policy, 44 employees were forced onto unpaid leave due to their vaccination status. The union representing a third of BC Hydro’s employees disputed the vaccination policy on the basis that it negatively impacted the livelihood of those employees and that there were less intrusive measures available to achieve the same objective.

The second decision concerns a vaccination policy from Finning (Canada) (“Finning”). The policy in that instance required all employees to disclose their vacation status. Any employee who chose not to disclose their vaccination status, or any employee who disclosed that they were not fully vaccinated was required to show proof of a negative Rapid Antigen Test at least 72 hours prior to entering Finning’s premises.² The union representing Finning’s employees took issue with the policy on the basis that it imposed a cost to the employee, both a monetary cost and time cost.

On March 21, 2022, an arbitrator upheld BC Hydro’s mandatory vaccination policy. Just ten days later, on March 31, 2022, a different arbitrator found Finning’s vaccination policy was unreasonable to the extent it required employees bear the cost of testing. Below we discuss the rationale in these decisions and the takeaways for employers.

What was the arbitrator’s rationale?

In the BC Hydro arbitration, the arbitrator noted that BC Hydro needed to demonstrate that the mandatory vaccination policy was reasonably necessary to counterbalance employee interests of privacy and integrity. In determining this issue, the arbitrator considered the fact that BC Hydro had implemented several health and safety measures prior to implementing the mandatory policy, but despite its efforts still experienced two significant outbreaks and several serious cases, including three related deaths. The arbitrator also considered the fact that the provincial health officer had identified workers in industrial sites as “high risk” and those sites as areas of concern for outbreaks.

The arbitrator held that the best measure for preventing transmission was vaccination and that other alternatives were unreliable. BC Hydro’s history of outbreaks was given significant weight, but the arbitrator noted that an employer is not required to wait until it had evidence of outbreaks and that a precautionary approach was permissible. Ultimately, the arbitrator found the policy to be reasonable and in the best interests of the employer, employees, customers and the public and the policy outweighed the intrusion on the interests of those employees on unpaid leave.

The arbitrator also noted that the employees made a difficult decision not to be vaccinated, resulting in their lost income, but they had not been disciplined for doing so. The reason for the unpaid leave was to protect all employees and ensure a safer workplace, not to discipline or terminate non-compliant employees.

Conversely, the arbitrator for Finning focused only on the narrow issue of whether the cost of paying for rapid tests, and the lack of compensation for the time to administer or obtain them, was reasonable. Unlike with BC Hydro, it was not a matter of whether the mandatory vaccine policy as a whole was reasonable. Specifically, the arbitrator stated:

“Whether a mandatory vaccination policy (without rapid testing options) in these particular circumstances would have been found to be reasonable is not the question I have been asked to decide. Once the Employer offered testing options to mandatory vaccination, it opened itself up to scrutiny of those options [relating to the legitimate exercise of management rights].”

Based on this scope of the issue at hand, the decision turned on the finding that by failing to cover the cost, Finning had created a barrier to attending work for employees who did not wish to disclose their vaccination status. The imposition of the cost for the test should have been borne by Finning based on the terms of their collective agreement, which requires them to pay for measures to ensure health and safety in the workplace.

Nonetheless, this narrow scope also limited the award. The arbitrator declared that the cost of testing was unreasonable, rendering that aspect of the policy invalid, and ordered Finning to cover the costs associated with obtaining tests. This did not result in the entire policy being declared unreasonable or invalid.

What does this mean for other employers?

Both decisions reflect a willingness for arbitrators to uphold mandatory vaccination policies, but with strict limitations on how they effect employees. What is clear from both decisions is that employees should not face discipline or termination for non-compliance, nor should they be forced to bear the costs of alternatives to vaccination.

This article canvasses only two recent decisions relating to vaccination policies. As noted above the decisions can vary greatly depending on the policy in question, and may differ from province to province. Employers should be aware of the decisions surrounding vaccination policies as they emerge, as well as changing risk levels regarding COVID-19, as these considerations may change over time. As with all mandates and restrictions surrounding COVID-19, this is not a settled matter, and will likely continue to evolve over the coming months.

If you have any questions about vaccination policies or other COVID-19 related matters, a member of our Employment and Labour Relations Group would be happy to assist you.

¹ BC Hydro and Power Authority and IBEW, Local 258, Re, 2022 CarswellBC 837.

² Finning (Canada) and IAMAW, Vancouver Lodge 692 (COVID-19 Vaccination Disclosure Policy), Re, 2022 CarswellBC 838.

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