employees

On 14 June 2022, a work union filed a grievance challenging the mandatory policy related to COVID-19 enacted by an employer on 20 December 2021. In particular, the policy required employees to become "fully vaccinated" and to prove their vaccination status.

Those employees who could not prove their vaccination status at that time were deemed to be unvaccinated and were not eligible to work. The Policy also provided that employees who continue to fail to become fully vaccinated could be terminated.

The union challenged the policy on two main grounds. The first grievance challenged the validity of the Policy from its inception, framing it as an unreasonable exercise of management rights. Secondly, the union claimed that even if the Policy was valid at its inception, it ceased being valid on 8 April 2022, when the Provincial Government changed its policy approach towards the pandemic and started removing certain public restrictions. In addition, the union clarified that its intention was not to diminish the significance of COVID-19 as a serious public health risk, but rather to demonstrate that scientific evidence shows that COVID-19 will last for a very long time, if not forever, and that we must adjust to it accordingly. Unsurprisingly, public health officials have already started transitioning from a crisis mode towards a more sustainable approach of long-term management of the virus by removing a number of COVID-related restrictions since the spring of 2022. Indeed, starting from that period, knowledge and control of COVID-19 was sufficient to allow vaccinated and unvaccinated people to enjoy several activities together even without masks.

By award no. 115 [2022] of 13 October 2022, the British Columbia Collective Agreement Arbitral Tribunal dismissed the claim. While acknowledging that the employer's policy forced unvaccinated employees to make decisions that, without the existence of a public health emergency, they should never be forced to make, the Tribunal found that, even though there has been a significant relaxation of public restrictions, the public health emergency is still existing. In particular, the decision by public authorities to ease certain restrictions does not erode an employer’s right to take all reasonable steps to protect the health and safety of its employees. Therefore, the Tribunal dismissed the union’s claim and concluded that the policy continues to be valid.