December 9, 2021 - Mandatory Vaccination Policies

This CSSEA Info follows up on the ones issued November 23, 2021 and October 22, 2021 outlining the expansion of the mandatory vaccination PHO Order to CLBC and health authority contracted service providers, respectively.

This CSSEA Info will address employer policies and related documents that:

1. Flow from the two expanded PHO Orders covering CLBC and health authority contracted service providers (and possibly additional employees covered by the PHO Order where it is not operationally feasible from an occupational health and safety (OHS) perspective to separate the additional employees from application of the Order);
2. Are implemented where there is no PHO Order in effect, and where employers, in their particular circumstances, find it appropriate to implement a mandatory vaccination policy.

This CSSEA Info provides both groups of employers with template policies and related documents. These template documents may be customized to suit your particular circumstances and needs.

Employers Covered by the PHO Order

While the PHO Order provides the mandate for employee vaccination, an employer covered by a PHO Order may use this template policy to address possible redeployment and the length of unpaid leaves of absences for unvaccinated employees starting from the dates of ineligibility as established by the Order, as the Order does not expressly address these (and some other) items.

Employers Not Covered by the PHO Order

An employer not covered by a PHO Order may use this template policy, but is not required to implement such a policy. It may implement a policy based on its particular circumstances. Some factors to consider when deciding to implement a policy include:

• Previous outbreaks of COVID-19 in the workplace;
• difficulties in protecting the workplace without a vaccination policy; is there an increased danger of transmission due to the type of activity that occurs in the work settings that a less intrusive approach would not be able to effectively contain;
• without a vaccination policy, will existing precautions and approaches be inadequate to prevent substantial interference with the delivery of services;
• whether there is regular employee contact with vulnerable client populations;
• consistency with other similarly situated employers and services.

WorkSafeBC has also provided information for employers considering the implementation of mandatory vaccination policies: https://www.worksafebc.com/en/covid-19/vaccination-and-the-workplace

Placing Employees on Unpaid Leaves of Absence

In addition to the template policies, we also provide a template letter that may be used for employees advising them of their ineligibility to work and that they have been placed on an unpaid leave of absence.

Timing of policy roll-out – Section 54 of the Code

A recent Labour Relations Board decision involving BC Transit ruled on the requirement to issue Section 54 notice under the Labour Relations Code in these circumstances. The LRB ruled that the notice was necessary and that employees could not be placed on unpaid leave of absence until the 60 day consultation period expired. There are some other Section 54 complaints currently being heard by the LRB, all which deal with vaccination policies that call for employees to be put on unpaid leaves if they refuse to be vaccinated by a certain date. Until we have decisions from these complaints, we are recommending that employers follow the ruling in the BC Transit case and issue Section 54 notice without prejudice to whether it is required by law. Employers (both PHO Order employers and non-PHO Order employers) may use the applicable template Section 54 notice.

Note that Section 54 notice is recommended for the introduction of both types of policies as described above.

For employers wishing to introduce a vaccination policy where there is no PHO Order in effect, the Section 54 notice and consultation period would apply to both the start of the unpaid leave of absence period and the potential termination. These changes should only be implemented following the expiry of the 60 day consultation period.

For employers introducing the vaccination policy where there is a PHO Order in effect, the 60 day notice period would not apply to the placing of employees on an unpaid leave of absence, as this has already occurred in some circumstances, and in any event unvaccinated employees are not permitted to work (subject to limited exemptions) under the PHO Order, not employer policy. However, the period of time on unpaid leave of absence leading to potential termination of employment is a matter that an employer policy would cover, so any terminations should not occur prior to the 60 day notice period expiring.

To illustrate, under the template Vaccination Policy that flows from the PHO Order, it states that an employee is “subject to termination” after a three (3) month unpaid LOA period that would start on a date that the unvaccinated employee is prohibited from working, eg. December 10, 2021 under the CLBC expanded Order.

If the draft policy is established and Section 54 notice served on the union on December 15, then the 60 day consultation period would expire by February 15. Unvaccinated employees would still be subject to termination under the finalized Policy as of March 10 (which is 3 months from the ineligibility date under the Order).

Note that the obligation under Section 54 of the Code is to engage in good faith discussions with the union. After doing so, there is no obligation to agree to an adjustment plan or change the Policy, and an employer may then proceed.

Exemptions

The PHO Order and the template Policies both address possible exemptions. Medical exemptions are available under the PHO Order in limited circumstances and must be applied for directly with the PHO Office and granted only by it. Employers not covered by the PHO Order but the second Policy would be advised to consider only the same medical exemptions as listed for PHO exemptions:
https://www2.gov.bc.ca/assets/gov/health/forms/2371fil.pdf

Some employees may claim exemptions on religious grounds. CSSEA is examining the limited circumstances in which these exemptions may be considered as part of the duty to accommodate process and more information will follow.

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