B.C. Hydro’s mandatory vaccination policy for employees has been deemed reasonable by a labour arbitrator who refuted arguments from a labour union looking to reverse the policy.
The International Brotherhood of Electrical Workers represents 1,744 of approximately 6,600 active employees at B.C. Hydro. In the arbitration, IBEW represented 44 workers who were placed on unpaid leave for refusing to comply with the vaccination policy.
IBEW employees are engaged in a number of roles at B.C. Hydro and often work in close quarters with co-workers and customers. Some work in camp settings, travel in vehicles with others and work in settings where social distancing is impossible.
Arbitrator Gabriel Somjen wrote that the health and safety objectives of the policy outweighed the “significant intrusion” on the interests of the employees.
COVID-19 posed a serious risk to B.C. Hydro’s operations. The case shed light on how B.C.’s largest electric utility kept track of infections and outbreaks among staff. As of Jan. 18, 2022, B.C. Hydro has tracked more than 3505 suspected or confirmed cases of COVID-19 in its workforce.
B.C. Hydro has also seen two major outbreaks at Site C Dam work camps and an outbreak among the Surrey Construction Services business group — 11 employees with Construction Services took time off work due to COVID and received wage loss benefits from WorkSafeBC.
One contractor working on a B.C. Hydro project died of COVID-19, two spouses of B.C. Hydro employees have died of COVID, some employees required hospitalization and some experienced long COVID.
“The employer tracked positive and suspected positive cases in the workplace over time and concluded that about 50 per cent of B.C. Hydro employees fell into that category,” Somjen wrote.
“All of this suggests that, notwithstanding the significant mitigating measures that B.C. Hydro took, even after the policy was in place, COVID-19 was affecting its employees, contractors and related persons.”
The significant risk of COVID-19 led B.C. Hydro to undertake numerous safety measures, including the closure of gyms and shared office spaces, requiring employees to work from home if possible, supplying and requiring face masks for employee travel, requiring physical distancing where possible, improving ventilation systems, staggering start times to limit the number of people on a worksite, and implementing a “shelter in place” plan for control room personnel where workers had to live in RV sites in two rotations for 10-day periods.
As B.C. Hydro took steps to manage COVID infections inside the company, third-party customers and partners notified B.C. Hydro that they would only work with vaccinated employees.
Helicopter operators that shuttled IBEW employees to remote worksites notified BC Hydro that they would not fly unvaccinated individuals. Some customers like St. Paul’s Hospital, some construction sites, hotels, long-term care facilities, B.C. Place and YVR Airport also requested individuals be vaccinated.
Vaccines were also required by Tsay Keh Dene, Kwadacha, Nuxalk, Gitga’at, Heiltsuk and Haida Gwaii First Nations.
On Oct. 21, 2021, B.C. Hydro notified employees of the mandatory vaccination policy. The policy stipulated that all employees must receive at least one dose of vaccine by Nov. 22 and their second dose by Jan. 10, 2022. B.C. Hydro did allow for medical exemptions but refused to offer exemptions on the basis of “opinion or belief” about vaccination.
IBEW argued that the policy was an unreasonable, unjustified intrusion on employee privacy and their bodily autonomy. IBEW said that rapid antigen testing for unvaccinated employees would be a reasonable accommodation.
Somjen rejected the argument, stating that rapid antigen tests are not as effective at preventing COVID as vaccination. Since B.C. Hydro is an essential service provider charged with a duty to supply and maintain power to British Columbians, it must have a healthy, safe and adequate workforce to meet that mandate.
“Rapid testing does not prevent an employee from becoming infected. It does not reduce the transmissibility of the virus and it does not reduce the severity of illness if an employee becomes infected,” Somjen wrote.
While he found the policy to be reasonable, Somjen wrote that a disciplinary mechanism in the policy was “coercive” and therefore unreasonable. The policy stipulated that beyond being placed on unpaid leave, employees could face termination as a result of remaining unvaccinated.
Somjen wrote that disciplinary measures did little to achieve B.C. Hydro’s objective of workplace health and safety.
“The 44 employees who have chosen not to be vaccinated have been placed on unpaid leave. They are not presenting any health or safety issues for BC Hydro, its employees, contractors, etc. Nor are they being paid.”
“I conclude that the Policy is reasonable, except for the discipline sentence referred to above. The grievance is allowed in part with respect to that sentence and denied with respect to the remainder of the policy.”
The arbitration did not include B.C. Hydro employees who are not represented by IBEW.