Arbitrator upholds firing of health worker who refused vaccination

A B.C. labour arbitrator has upheld the firing of a substance use counsellor who refused to comply with an order requiring health authority employees to get vaccinated against COVID-19.

According to the decision, Lori Capozzi had worked for the Fraser Health Authority for seven years and had a discipline-free record when she was fired last November after "multiple notifications" about the vaccine requirement.

Arbitrator Koml Kandola said the case was "not about the validity of the Hospital and Community Order" mandating vaccination for health-care workers, nor about "the benefits or drawbacks of vaccination."

Instead, Kandola said the question was whether the health authority had reasonable grounds to terminate an employee given the context of an order from B.C.'s provincial health officer (PHO) imposing new rules.

"There is no dispute that [Capozzi] advised she will not get vaccinated and has no intention of ever doing so. There is no exemption available to her under the Order," Kandola wrote.

"Simply put, there was no path forward for [her] for continued employment."

'Did not ever intend to become vaccinated'

B.C.'s Ministry of Health says nearly 2,500 health-care employees have been fired around the province for refusing to get vaccinated, in defiance of a series of rules that culminated in a provincewide order last October.

The arbitrator's decision says 460 Fraser Health Authority employees have lost their jobs.

According to the ruling, Capozzi expressed her "strong objection" to vaccination on a number of occasions, sending a "personal notice of liability" to her manager last October, "alleging that the vaccination requirement was unlawful and claiming that her manager would be personally liable for any loss of income."

On Oct. 29, 2021, Capozzi "confirmed she was not and did not ever intend to become vaccinated."

"She indicated that she objected to vaccination on religious grounds, and that she felt the PHO Order was unlawful and violated the Charter [of Rights and Freedoms,]" the decision says.

The decision says Capozzi was offered the one-shot Johnson and Johnson vaccine but confirmed on Nov. 25, 2021, that "she had 'absolutely' no intention of obtaining any vaccination" — after which she was fired.

Capozzi's job has since been filled.

She "testified that the period after her termination was very difficult for her. She has since been providing individual counselling services through her own business," Kandola wrote.

The union argued that a "temporary inability to work" does not justify firing and pointed out that the Hospital and Community Order does not require termination.

Operational considerations for firing

Fraser Health Authority managers testified that it made the decision to terminate unvaccinated employees because there was "no identifiable path" forward for them to be eligible to work.

An executive testified that posting temporary positions while unvaccinated employees were put on leave would present its own set of problems: "the median time to fill temporary shifts is twice that needed for permanent postings; temporary shifts are considered undesirable and difficult to fill ... and temporary positions can go through a lot of staff churn."

"Fraser Health Authority did not consider it reasonable to place the employee on an unpaid leave of absence of unknown duration, on the hope that the employee or the PHO would change direction," the decision says.

To reach a conclusion, Kandola weighed Capozzi's clean disciplinary record and seniority against the health authority's operational needs.

"Termination is the most serious of employment outcomes. [Capozzi] suffered emotionally as a result," Kandola wrote.

"On the other end of the scale is the existence of a government order with no expiry date, no indication of the Order being lifted in the near future, and the serious operational impacts on the health-care system associated with placing unvaccinated employees on unpaid leaves of absence of unknown duration."

Capozzi did not respond to a call for comment.