Ruling that upholds B.C. Hydro's staff vaccine mandate reveals toll COVID-19 has taken on corporation

A B.C. labour arbitrator has upheld a requirement for B.C. Hydro employees to be vaccinated against COVID-19 — rejecting a bid to overturn the mandate by a union representing a third of the Crown corporation's employees.

In a decision posted this week, arbitrator Gabriel Somjen noted that B.C. Hydro's chief executive officer described the choices senior management faced in regards to vaccination as "the most difficult decision of their careers."

But despite the impact on 44 members of the International Brotherhood of Electrical Workers who have been forced onto unpaid leave as a result of their vaccination status, Somjen said the requirement was justified.

"Having considered the interests of the 44 employees, B.C. Hydro, its employees, customers, contractors and the public, I conclude that the policy is reasonable," Somjen wrote.

"The interests that led to the policy outweigh the significant intrusion on the interests of the 44 employees."

Deaths and outbreaks

The case pulls back the veil on the considerations that B.C.'s largest Crown corporation went through in deciding how to balance the individual rights of its 6,600 employees against those of the partners and public it works with before introducing a vaccine mandate last October.

The decision paints a stark picture of the toll COVID-19 has taken on the organization.

B.C. Hydro has seen two significant outbreaks at the Site C hydroelectric dam project in the northeast of the province and a third outbreak in its Surrey Services Construction Business group.

"The employer tracked positive and suspected positive cases in the workplace over time and concluded that about 50 per cent of B.C. Hydro employees fell into that category," Somjen wrote.

"One contractor working on a B.C. Hydro project died from COVID. Two spouses of B.C. Hydro employees died of COVID-19. Some B.C. Hydro employees required hospitalization and some experienced 'long COVID.'"

Policy reconsidered after employees raised concerns

According to the decision, B.C. Hydro initially rejected the idea of mandatory vaccination but backtracked last fall after some employees raised concerns about the need for protection from infection by co-workers.

Customers and partners also insisted only vaccinated employees enter their premises, including helicopter operators hired to shuttle staff to sites, hospitals, construction sites, long-term care facilities, B.C. Place and Vancouver's airport.

"In addition, vaccines were mandated at Tsay Keh Dene, Kwadacha, Nuxalk, Gitga'at, Heiltsuk and Haida Gwaii," Somjen wrote.

Most International Brotherhood of Electrical Workers members are red seal, ticketed tradespeople who work as electricians, mechanics and other professions installing, operating and maintaining B.C.'s power grid.

The union filed a grievance against the mandate in November 2021, arguing that B.C. Hydro's existing policies were effective in controlling the spread of the virus.

"The union argued that there were less intrusive measures the employer could have taken," Somjen wrote.

"The union argues that less intrusive measures, such as rapid antigen testing among the bargaining unit or other mitigating measures should have been considered and attempted."

Threat of discipline unfair

B.C. Hydro countered that it had "valid and significant reasons" for introducing the vaccination policy.

"Less intrusive measures like rapid antigen tests were not as effective as vaccination," Somjen wrote.

"It has a duty as an essential service provider to supply and maintain power to British Columbians. It must have a healthy, safe, and adequate workforce to meet that mandate."

Somjen found the policy reasonable, in part, because union members work in close indoor sites and industrial camps that have been targeted as "high risk" by the provincial health officer.

While the arbitrator upheld the mandate itself, he said one sentence in the policy outlining the rules was unfair because it referred to the threat of discipline for continuing to be unvaccinated.

"Just as B.C. Hydro's decision to impose the policy was a difficult one, these employees have made the difficult decision not to be vaccinated, resulting in the loss of their income," Somjen wrote.

"The employer has achieved its health and safety goal of having only vaccinated employees working in this bargaining unit. The addition of potential discipline at this time will not enhance that goal but will further impinge on the employees."