Article prepared by: HR Reporter.com – Jeffrey R. Smith
“The consideration of COVID policies is a unique branch of labour law – this is a very distinct category and is distinguishable from the line of cases that flowed from drug and alcohol policies or random drug testing.”
So says labour lawyer Michael Penner at Kent Employment Law in Victoria, following a B.C. arbitrator’s upholding of a transit authority’s vaccination policy after public health restrictions were relaxed.
This decision and Coca Cola Canada Bottling Inc. and TC, Local 213 are emphasizing that the traditional KVP analysis and Irving analysis of policy reasonableness and the balance between workplace safety and employee privacy remains, “but this is a distinct branch in terms of their application,” says Penner, referring to the 1965 case Re Lumber and Sawmill Workers Union, Local 2537 and KVP Co and the 2013 decision Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.
Health and safety objective
Coast Mountain Bus Company is a provider of public bus service in the B.C. Lower Mainland. In October 2021, Coast Mountain announced a mandatory COVID-19 vaccination policy for all employees, to come into effect on Dec. 20.
The policy required employees to verify that they were fully vaccinated in order to work, unless they had an approved medical accommodation. The policy incorporated the definition of “fully vaccinated” that was used in public health orders, which meant a primary series of vaccine – two doses of certain vaccines or one dose of a particular vaccine. Employees who confirmed that they did not receive the primary series of vaccine or did not verify their status were considered unvaccinated.
The policy stated that its purposes were to protect the health and safety of employees from COVID-19, reduce the overall risk of workplace transmission, contribute to the health and safety of people who use public transportation, and comply with the law.
Coast Mountain employed more than 4,000 transit operators to drive buses. Out of those, 31 were unvaccinated without a medical exemption and were put on unpaid leave under the policy. Another 79 were on another type of leave and did not verify their vaccination status.
Read more: An Ontario employer’s vaccination policy was reasonable at the time of implementation, but became unreasonable after failing to adapt to changing circumstances
On April 12, 2022, B.C.’s public health officer eased COVID-19 restrictions, including the expiry of a public health order requiring proof of vaccination to enter certain businesses and masking requirements. However, Coast Mountain informed employees that its vaccination policy would remain in effect because vaccination continued to be the most effective means of providing protection to its employees against serious illness such as long COVID, hospitalization, and death.
The policy’s definition of fully vaccinated did not include booster doses, as public health orders were not updated to include them.
Waning efficacy of vaccines against infection
The union filed a grievance, arguing that it was unreasonable to continue with the policy while government restrictions were relaxed. It said that the vaccines were no longer effective at preventing infection from the newer Omicron variant of COVID-19 and the remote risk of serious illness from Omicron didn’t justify continuing to enforce the vaccination policy.
The union referred to a medical report that vaccination did not protect against transmission and infection by the Omicron variant and public health studies that found vaccine effectiveness decreased over time.
Coast Mountain countered that its main reason for maintaining the vaccination requirement was not to prevent infection, but to help protect against serious illness and public health data supported the notion that vaccines still served that purpose, even if they didn’t reduce the risk of transmission from Omicron.
Distinct risk for public-facing workforce
When public health restrictions were lifted, passengers and transit operators were not required to wear masks on buses. Over the course of a typical workday, transit operators came into contact with a large number of members of the public who could be infected and contagious, the arbitrator said, adding that when vaccines became available in 2021, public health authorities supported prioritizing access to vaccines for transit operators due to the nature of their jobs.
Read more: A B.C. employer’s vaccination policy was reasonable on its face, but its possibility of discipline for non-compliance was not
The arbitrator noted that Coast Mountain’s duties as an employer were distinct due to the level of interaction between employees and the public. In addition, the vaccination policy didn’t force anyone to take the vaccine but rather allowed them to make a personal choice, of which the result of not getting vaccinated resulted in unpaid leave.
“The standard isn’t perfection, it’s whether the policy is reasonable [and] the least intrusive means to satisfy the objectives,” says Penner. “The objectives for the employer are to protect and preserve the health of their employees and the public, because their enterprise serves the public – and not just the public, but a wide swath of the public.”
“Despite the episodic variations with public health orders, the preamble to those public health orders has maintained a consistent message – vaccination remains the most effective means to limit the health harm caused by COVID,” he adds.
Although the union provided evidence that vaccination didn’t reduce the risk infection from Omicron, Coast Mountain’s stated purpose for the policy was to reduce serious illness – and public health data supported the idea that vaccination did that, said the arbitrator, adding that the public health orders lifting restrictions included recommendations that people still get vaccinated.
What favoured Coast Mountain was the fact that it was able to show that it thoughtfully considered the change to the public health restrictions and kept the policy consistent to its purpose, says Penner.
“The framework which the public health office continued to work with was that vaccination is not so much preventative, but it mitigates the seriousness of contracting COVID,” he says. “And, ultimately, the reasonableness of the employer’s policy was predicated on that as opposed to the efficacy of the vaccines themselves in preventing COVID.”
The arbitrator also found that transit operators could not work remotely and they worked in the community where the COVID-19 virus was circulating. Buses were closed environments in which measures to completely protect against airborne viruses were difficult to implement, and Coast Mountain sought to implement the highest degree of control over health and safety that was available – which was vaccination, the arbitrator said.
Other protective measures suggested by the union, such as plexiglass barriers and PPE, didn’t hold up to public health data with regards to Coast Mountain’s primary concern, says Penner.
“Those things ultimately may impact transmission, but they don’t address this issue that vaccination does – which is if you are to contract this, or if a member of the public is to contract this, having your workforce vaccinated is going to at least lessen the likelihood of COVID having serious health consequences,” he says. “None of those other things like masking or distancing, or even antivirals, had the same efficacy in that sense.”
The arbitrator determined that Coast Mountain’s stated interest in maintaining the vaccination policy was based on its duty to protect employees from serious illness and the “presumption of occupational disease” under the B.C. Occupational Health and Safety Act. The “unique and exceptional circumstances of the COVID-19 pandemic” established a nexus between the vaccination policy and the employer’s duty to ensure the health and safety of workers, which outweighed employee interests of autonomy over their medical decisions and health risks, said the arbitrator.
Message to employers
“The message to employers is that if you’re indexing your policy on public health orders, you’re on solid ground – but I think that requires your policies to be ‘evergreen’ and you need to consistently revisit them and adjust them if the public health orders change,” says Penner.
The policy also didn’t establish culpability for the unvaccinated, which helped secure its reasonableness, he says.
“With any vaccination policy, you are treading on some pretty thin ice in terms of intrusion into your employees’ body autonomy and privacy – all those fundamental rights,” he says. “There wasn’t a draconian ‘Get vaccinated or else,’ it was: ‘You can choose not to be vaccinated; unfortunately, the consequences of your choice is you need to go on unpaid leave.’”
“The person is suffering a pretty significant financial consequence for making that choice, but they weren’t facing a disciplinary penalty,” says Penner.
See Coast Mountain Bus Co. and Unifor, Local 111 (Vaccination Policy), Re, 2022 CarswellBC 2641.