A British Columbia labor arbitrator has upheld the requirement for BC Hydro employees to be vaccinated against COVID-19 – rejecting an attempt to overturn the mandate of a union representing a third of the company’s employees of state.
In a decision posted this weekarbitrator Gabriel Somjen noted that the BC Hydro chief executive described the choices facing senior management regarding vaccinations as “the toughest decision of his career.”
But despite the impact on 44 members of the International Brotherhood of Electrical Workers who were forced to take unpaid leave due to their vaccination status, Somjen said the demand was justified.
“After considering the interests of the 44 employees, BC Hydro, its employees, its customers, its contractors and the public, I conclude that the policy is reasonable,” Somjen wrote.
“The interests that led to the policy outweigh the significant intrusion into the interests of the 44 employees.”
Deaths and epidemics
The case lifts the lid on the considerations BC’s largest Crown corporation took in deciding how to balance the individual rights of its 6,600 employees against those of the partners and public it worked with before to introduce a vaccination mandate last October.
The decision paints a grim picture of the toll COVID-19 has taken on the organization.
BC Hydro has had two major outbreaks at the Site C hydroelectric dam project in the northeast of the province and a third outbreak at its Surrey Services Construction Business group.
“The employer has tracked positive and suspected positive cases in the workplace over time and has concluded that approximately 50% of BC Hydro employees fall into this category,” Somjen wrote.
“A contractor working on a BC Hydro project has died from COVID. Two spouses of BC Hydro employees have died from COVID-19. Some BC Hydro employees required hospitalization and others suffered a ‘long COVID'”.
Policy is reviewed after employees raise concerns
According to the decision, BC Hydro initially rejected the idea of mandatory vaccination, but backtracked last fall after some employees raised concerns about the need to protect themselves from infection from co-workers.
Customers and partners have also insisted that only vaccinated employees enter their premises, including helicopter operators hired to transport personnel to venues, hospitals, construction sites, long-term care facilities , BC Place and Vancouver Airport.
“Additionally, vaccinations were mandatory in Tsay Keh Dene, Kwadacha, Nuxalk, Gitga’at, Heiltsuk and Haida Gwaii,” Somjen wrote.
Most members of the International Brotherhood of Electrical Workers are Red Seal tradespeople who work as electricians, mechanics and other occupations who install, operate and maintain BC’s electrical system.
The union filed a grievance against the mandate in November 2021, arguing that BC Hydro’s existing policies were effective in controlling the spread of the virus.
“The union argued that there were less intrusive steps the employer could have taken,” Somjen wrote.
“The union argues that less intrusive measures, such as rapid antigen testing within the bargaining unit or other mitigating measures should have been considered and attempted.”
Threat of unfair discipline
BC Hydro countered that it had “valid and significant reasons” for introducing the vaccination policy.
“Less intrusive measures like rapid antigen testing were not as effective as vaccination,” Somjen wrote.
“As a provider of essential services, it has a duty to provide and maintain electricity to British Columbians. It must have a healthy, safe and adequate workforce to fulfill this mandate.”
Somjen found the policy reasonable, in part because union members work in closed sites and industrial camps that have been targeted as “high risk” by the provincial health officer.
Although the referee upheld the mandate himself, he said a sentence in the policy outlining the rules was unfair because it referred to the threat of disciplinary action for continuing not to be vaccinated.
“Just as BC Hydro’s decision to impose the policy was a difficult one, these employees made the difficult decision not to be vaccinated, which resulted in the loss of their income,” Somjen wrote.
“The employer has achieved its health and safety goal of having only vaccinated employees working in this bargaining unit. Adding potential disciplinary action at this time will not enhance that goal, but will further impinge on the employees.”