'She was ineligible to work, which was a fundamental change to the employment relationship'
A British Columbia arbitrator has upheld the dismissal of a health-care worker who didn’t comply with a directive to get vaccinated against COVID-19 that came from the provincial government.
Vaccination policies are often found to be reasonable within limits, but when vaccination is a government-mandated requirement, termination of employment may be on the table, says Mike Hamata, an employment lawyer and partner with Roper Greyell in Vancouver.
“I think this case squares with the emerging body of arbitral decisions with respect to employer vaccination policies in that in most cases, [the policy] will be reasonable except in circumstances where employees can work from home,” says Hamata. “This case had an added layer that assisted the employer, which was that it wasn't really the employer’s internal determination that vaccination was required to perform the job, but the government imposed it through a provincial health order.”
The 29-year-old worker was a casual health-care assistant in the intensive care unit (ICU) at Royal Columbian Hospital in New Westminster, BC.
As a casual employee, she was normally subject to working a minimum of 225 hours over a 12-month period, if the Fraser Health Authority (FHA) – which operated the hospital – offered at least that many hours of work. FHA deferred the minimum from July 2020 to the end of 2021 due to the pandemic.
Provincial health mandate
In the summer of 2021, the province implemented a mandate requiring all health-care employees working in long-term care, assisted living, and mental health facilities to be fully vaccinated against COVID-19. Soon after, FHA notified its employees that a vaccination requirement would soon be implemented for the rest of BC’s health-care system.
On Sept. 24, the provincial public health officer announced that all employees in the health sector would be required to be fully vaccinated by Oct. 26 in order to keep working. FHA notified its employees by email, text, and voicemail.
On Oct. 15, FHA sent an email to employees who hadn’t yet disclosed their vaccination status confirming the deadline and stating that they would be terminated on Nov. 15 if they hadn’t received their first dose by Oct. 25.
The worker had a heart condition and was anxious about surgery because she had worked in the cardiac ICU for more than two years. She didn’t get vaccinated because she was concerned about reports she had heard about heart issues and blood clots.
Worker had concerns about vaccination
The worker spoke with her manager, an HR representative, and her shop steward on Oct. 29. She understood that her employment would be terminated if she remained unvaccinated, so she said she would try to get a medical exemption. Her manager provided her with information about the medical exemption process.
The worker was placed on an unpaid leave of absence following the meeting.
Several days later, FHA informed employees that the single-dose Johnson & Johnson vaccine would be available to health-care workers on a priority basis and they would receive additional time to receive that vaccine if they were committed to getting it.
FHA tried to contact the worker to schedule another meeting, but she didn’t respond. It terminated her employment on Nov. 21 in the absence of proof of vaccination, a medical exemption, or any intention to get vaccinated.
Employees provided with information, options
FHA handled the situation well leading up to the termination, says Hamata.
“The process that they went through with employees like the [worker] who didn't want to get vaccinated was quite accommodating in that there was lots of notice given and there was a sort of stepped approach,” he says. “The employer didn't immediately conclude that the employment relationship was frustrated – there was initially a period of unpaid leave to give the employee opportunity to reconsider, get vaccinated, or let the employer know that she intended to get vaccinated.”
“It looks like the manager tried to meet with the employee personally to explain, ‘If you don't get vaccinated, your employment will be terminated’ – and there was lots of warning along the way for the employee to raise any true human rights accommodation issues or to get more information,” adds Hamata. “And it looks like the employee either disregarded those warnings or potentially even avoided the employers attempts to contact her.”
The union challenged the termination, arguing that there was no reasonable cause for discipline, let alone termination. It said that since the 225-hour minimum requirement for casual employees was waived, the worker wasn’t required to work – the same as if a vaccinated casual employee chose not to work.
The arbitrator noted that the worker was a casual employee who had different terms and conditions of employment than regular employees and FHA had no obligation to provide work for her while she had a limited obligation to accept work.
Worker ineligible to work
However, the arbitrator found that the worker’s circumstances were different from that of a vaccinated casual employee who chose not to work. The worker had the right to decline shifts, but the provincial health order and her unvaccinated status changed FHA’s ability to offer her shifts – she was ineligible to work, which was a fundamental change to the employment relationship, the arbitrator said.
“In a situation where an employer offers shifts to a casual employee under this collective agreement and casual employee declines, the employment relationship may continue – but because of the [public health order] with respect to vaccination, the employer wasn't even able to offer shifts to the employee,” says Hamata. “So that dealt with that argument by the union and further bolstered the frustration of contract [argument].”
The arbitrator found that under a collective agreement, it was possible to dismiss an employee for non-culpable innocent absenteeism where the employee couldn’t work for reasons such as a license suspension or a failure to pass a security clearance, and this case was analogous to that.
Reasonable foreseeability
It’s an interesting discussion about the test that applies in these circumstances, says Hamata.
“One of the normal factors of the test [for] frustration of contract is whether there's a reasonable foreseeability that the inability to perform the job tasks will continue,” he says. “The reasonable foreseeability arises in other cases like absenteeism where the question is, is this employee is going to be terminated for frustration of contract because they can't attend work regularly enough and is that likely to change?”
In this case, there was no evidence that the worker intended to be vaccinated in the future, so there was no reasonable foreseeability of her fulfilling the employment contract, the arbitrator said. FHA wasn’t required to leave the worker on the casual list indefinitely when there was no prospect of her accepting shifts, the arbitrator added.
Hamata notes that although the worker had medical concerns about the vaccine and FHA provided information on pursuing a medical exemption, the worker didn’t provide any further information in that regard.
“Whether the [worker] was told by her treating medical professionals that her concerns were unfounded or she never pursued any of them, I think it makes a cleaner assessment because there's no human rights disability accommodation angle,” says Hamata.
The arbitrator determined that the worker was aware of the consequences of not getting vaccinated and she didn’t apply for a medical exemption or provide medical evidence that would exempt her. She had a right to make the decision to not get vaccinated, but that decision put her in a position where she could not be offered work, the arbitrator said in dismissing the grievance.
Takeaways
A big takeaway for employers is the process FHA followed in ensuring employees were well-informed of the vaccination requirement and giving them the chance to comply, says Hamata.
“The process, which was put out to all employees, noted that as of a particular date they were all going to be required to be vaccinated and those who didn't get vaccinated would first be placed on leave of absence and then eventually their employment would be terminated,” he says. “[FHA] was very good about communicating that to employees, providing additional information to concerned employees, and trying to be as communicative as possible with impacted employees – I think it's an example of a really good process that employers can follow.”
Hamata adds that employees and unions often argue in this type of case that it violates employee rights to force them to get vaccinated, but that isn’t usually what’s happening.
“That's often the pitch from the union or from [employee] counsel, that vaccination is a deeply personal choice and employees ought not to be forced to make that choice if they don't want to,” says Hamata. “And the answer to that is, no one's being forced – employees remain free to choose whether or not to be vaccinated, but there are consequences for that choice and one of them might be that you're no longer eligible to work.”
See Fraser Health Authority and HEU (London), Re, 2022 CarswellBC 1996.
