November 15, 2021 - Planning for Further Mandatory Vaccination Orders

Further to our last CSSEA Info dated October 22, 2021, and the potential for new PHO Orders being issued for additional segments (e.g. CLBC programs), CSSEA recommends that employers should plan for how they will deliver services in the event of a reduced workforce. Depending on the magnitude of the potential impacts, they may need to discuss the service delivery implications with their provincial funders.

If your agency has implemented the Vaccination Status Collection Policy from the CSSEA Info dated August 26, 2021 or the recent Mandatory Vaccination Status PHO Order, you will have a fairly good understanding of the vaccination status of employees at your agency. Based on this information, you will be able to assess the potential impact that unvaccinated employees being placed on unpaid leave might have on your services. If the potential impact appears significant, you will want to consider what services must continue to be delivered in full, in part, or not at all in response to additional mandatory orders being issued. One way to inform this assessment is to refer to previous essential services orders reached in the event of previous labour disputes (note that essential services levels for labour disputes do not have direct application to this situation but may still be instructive of what your agency deems to be critical services to be maintained).

Guidance was provided early in the pandemic when there was a concern over employees not showing up for work based on health and safety concerns. You may recall that in an April 27, 2020 letter addressed to employers’ associations CEOs, PSEC Secretariat provided guiding principles that employers should consider when making decisions on business continuity. Many of the same guiding principles are paraphrased below, and should be applied in the circumstances potentially facing employers now. Specifically:

1. Protect public services by maximising the productive use of workers and resources. Where possible, maintain business continuity.
2. Operate within existing short and long-term financial parameters in partnership and consultation with funding ministries and Crown agencies.
3. Ensure workplaces are compliant with the Provincial Health Officer’s guidance and WorkSafeBC requirements so that employees can safely be at their place of work.
4. Work with unions and CSSEA to identify opportunities for redeployment where there may be staff shortages. Encourage underutilized employees to be better utilized.
5. If business continuity cannot be maintained and reduced staffing levels are temporarily required, prioritize the services that must be continued in full, in part, or not at all to match your available human resource capacity.
6. Ensure a ‘no surprises’ approach to staffing level changes by coordinating staffing plans with your provincial funders/line Ministries and union partners.

The April 27, 2020 PSEC Secretariat letter is found here for reference:
https://www.cssea.bc.ca/PDFs/Communications/04272020_PSECMemo.pdf

While potential solutions include the reduction of some services, they also include the redeployment of employees to the services where they are needed.

The Collective Agreements permit the redeployment of employees, with the following articles having potential application based on your circumstances:

1. Article 15.5 – changing work schedules.
2. Article 24.4(b) – bona fide transfers of employees.
3. MOA#8 – emergency deployment of excluded staff to perform bargaining unit work.
4. Any other reasonable arrangements agreed upon with your union partner(s) to problem-solve service challenges due to lack of staff.

Examples of other potential solutions to consider include:

1. Can the skills and qualifications of fully vaccinated employees be easily enhanced so that they can be redeployed to positions that might face staffing shortages?
2. Does the mandatory vaccination order need to be applied to programs not specifically covered by the PHO orders? In our last CSSEA Info, we stated the following in relation to the PHO Order for health funded programs:
   
   …The Order may be extended by employers in their reasonable discretion to cover other employees of an employer funded by non-Ministry of Health/health authority sources if there is integration between health and non health-funded employees such that it is not operationally feasible from a health and safety perspective to restrict the application of the Order to the health funded programs only…
   
   How strong is the integration between employees and clients in the programs specifically covered by a mandatory order in relation to the other programs? Would it be operationally feasible to introduce stronger health and safety measures to better separate/insulate the various programs?
3. If you are able to insulate clients/employees in the various programs, does this create opportunities for redeploying non-vaccinated status employees to those programs not covered by a mandatory order instead of placing them on an unpaid leave? Employers are encouraged to consider redeployment of non-vaccinated status employees to other positions where appropriate communicable disease protocols remain in place, for as long as these options remain available.
4. Are there opportunities to collaborate with other employers in your geographic area to explore your collective service needs, and whether there are surplus qualified employees available to support potential staffing solutions? Staffing solutions in this regard would most likely necessitate the involvement and support of your union(s).

On the related issue of employees being placed on unpaid leaves due to non-vaccination status, we have been fielding questions from employers about whether they must terminate these employees after a period of unpaid leave. The PHO Order states that an employer must not permit an unvaccinated staff member to work in the identified health programs. As a result, termination may be an appropriate response where an unvaccinated employee cannot be redeployed to work at locations not covered by the PHO Order. In the community social services sector, employers who receive health funding also have a majority of contracts for services not directly covered by the Order, and so there may be redeployment opportunities that present themselves, or there may be other staffing solutions available, as discussed above. Thus, while employees must not work in the health funded programs (and in the absence of a further expansion of the PHO Order), it has not been determined whether this equates to a requirement that employees be terminated from all employment at community social services employers at the end of an unpaid LOA period. It is also our understanding that some unions may challenge these decisions in community social services where redeployment or other options might be available. CSSEA is alive to the potential liabilities employers may face in those circumstances as well as the associated service delivery implications. Please contact your assigned CSSEA Consultant/Advocate to discuss these situations in your specific circumstances.

We will continue to monitor how this is being addressed in other public sectors, and will update you based on specific developments and challenges that emerge from those sectors. Note the latest information from the public service is found here, specifically at question #6.

Some employers are also receiving requests from their union(s) to provide a list of employees who may be placed on unpaid leaves flowing from the latest PHO Order. While there is no requirement under the collective agreements to provide this specific information, employers may do so to facilitate its collection (as the unions can likely secure this information by other means).

Should you have any questions, please contact your CSSEA Consultant/Advocate.