Workplace Vaccination Policies

WSN is composed of a group of advocates who support low-wage workers primarily with recovering missing wages. We are limited by the fact that we are not lawyers, and are thus unable to provide legal advice.

The aspects of a mandatory vaccine policy are beyond the scope of the services that the Worker Solidarity Network (WSN) is able to provide, but we can provide some information about the way the Employment Standards Branch and the Human Rights Tribunal have addressed Covid-19 protections and vaccination policies.

The Employment Standards Branch

The Employment Standards Branch enforces the Employment Standards Act, which include breaks, rates of pay, overtime pay, and other standards.

The Branch is limited in how it can address termination, but can offer compensation for length of service if certain conditions apply, based on the length of the employment. The requirement to pay compensation may be fulfilled by providing an equal amount of notice of termination. For example, 2 weeks of notice instead of 2 weeks of pay.

Compensation for length of service is not payable when the employment is terminated with just cause.

Just Cause

One of the ways an employer can demonstrate just cause is through progressive discipline.

Typically, in order to meet the requirements for demonstrating just cause, employers must show “progressive discipline” over time. Within that, the employer must be able to show that

  1. the employee was advised of expectations,
  2. that the employer has made reasonable efforts to assist the employee in achieving those expectations, and that
  3. the employer has specifically told the employee that continued failure to perform to those expectations would result in dismissal.

The Human Rights Tribunal

The Human Rights Tribunal enforces the Human Rights Code, which is intended to protect residents from discrimination based on several protected characteristics, in several areas, such as employment.

Discrimination under the BC Human Rights Code

The Code defines discrimination as conduct that causes harm to an individual in connection to a protected characteristic. The protection from negative effects based on a personal characteristic offered to an individual is limited to what the Tribunal calls “undue hardship”, which can include serious risk or excessive costs to the respondent.

Recently, the Human Rights Tribunal made a decision that has since been applied in other similar cases, and describes what circumstances do and do not demonstrate discrimination. You can view a more in depth summary on the tribunal website, here. There is more information regarding workplace vaccination policies here.

The BCHRC states in their workplace vaccination policies post that a personal desire not to get vaccinated is not protected by the Human Rights Code. This has been confirmed by the Tribunal in numerous decisions involving the requirement to wear a mask.

The Human Rights Tribunal also stressed that “protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules.”