Casual Legal: Review policies to avoid employment risks

By Anthony Purgas
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider 

A recent labour arbitration decision in British Columbia provides some guidance to municipalities dealing with issues related to COVID-19 vaccination policies and a timely reminder for employers to review their policies and handbooks to ensure they are up to date.

In BC Hydro v. IBEW Local No. 258 (Policy Grievance – Mandatory Vaccination), [2022] B.C.C.A.A.A. No. 209 (Somjen), the Union filed a grievance alleging BC Hydro’s mandatory COVID-19 vaccination policy was unreasonable. The Union argued mandatory vaccination was unnecessary since testing and other measures were available and reasonable alternatives. Unlike many such policies introduced earlier in 2022, BC Hydro’s policy required employees to either be vaccinated or be placed on an unpaid leave unless a human rights accommodation could be made. No option for testing other than vaccination was offered.

The arbitrator found the policy was reasonable. One of the factors they considered when looking at the reasonableness of the policy was that there continued to be suspected and confirmed cases of COVID-19 at BC Hydro’s location despite other measures having been put in place. BC Hydro’s taking of further measures was considered reasonable under the circumstances. The arbitrator did hold the discipline provision in the policy should be removed since putting the employee on unpaid leave was sufficient to meet BC Hydro’s health and safety obligations.

It is important to note the arbitrator’s decision was based on the situation at the worksite at the time. It serves as an important reminder that, as risks and social conditions change, policies may also need to change accordingly. For example, when cannabis was legalized in Canada in 2018 a number of employers had to revise their drug and alcohol policies, because their policies only referred to illegal drug use in connection with employment. Likewise, for those employers that adopted mandatory COVID-19 vaccination policies, it is important to consider whether the conditions of employment still require such a policy or whether the policy needs to be amended.

In general, we recommend that municipalities and all employers review their workplace policies and employee handbooks at least once every three or four years to ensure those documents still reflect reasonable requirements for that workplace based on working conditions and the surrounding social and legal landscape. Otherwise, the employer risks relying on a policy that it is not reasonable and, therefore, may not be enforceable.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.