Vaughn Palmer: clarifying the legality of vaccine orders so small businesses can join the urgent mandate

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VICTORIA – When the week started, broad mandates to get vaccinated were relatively rare in British Columbia workplaces.

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Then, on Tuesday morning, the 30,000-strong provincial public service was told to get vaccinated by November 22.

In the afternoon, the provincial health official, Dr. Bonnie Henry, brought down the long-term care staff. Get a first dose of the vaccine at the end of Thanksgiving weekend or get “unpaid” leave. It was said that a similar mandate for acute and community health care would come soon.

Henry also urged mandatory vaccination at Site C and other work camps in the Northern Health Region, stressed by the pandemic.

The next day, privately owned LNG Canada declared a vaccination mandate for its employees. The company urged the same for contractors at its LNG terminal under construction in Kitimat.

The largest provincial crown corporation, BC Hydro, weighed in on Thursday. The announcement expanded on Henry’s suggestion, requiring vaccinations for everyone working at Site C, for other Hydro contractors, and for the company’s more than 6,000 internal employees.

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BC Ferries acknowledged, after some confusion, that its workforce was covered by the vaccine mandate for federally regulated trucking companies.

TransLink and ICBC joined the train on Friday. Other provincial Crown corporations and agencies have received strong indications from Victoria and are expected to come on board soon. Timelines and details may vary. But the common message is “get vaccinated or else.”

It was also surprising how the public sector unions began to align themselves.

The BCGEU, on behalf of the unionized public servants, supported “vaccines for all who can”, despite not having previously been consulted on the government edict.

“The government indicated that the policy related to mandatory vaccinations has not yet been developed,” the union informed its members this week, adding that it expects to see the details before November 1.

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“Until (then), we may not be able to answer some of the legitimate questions that members may have about the implications of this new government policy.”

Meanwhile, the union warned members that the reasons for denying vaccination, medical or otherwise, were very limited. “A personal wish not to get vaccinated” is not one of them.

Public officials were also warned that if you choose not to get vaccinated, “your employer will most likely be able to place you on unpaid leave while COVID-19 remains a public health hazard.”

While the BCGEU followed a clear direction from the government, unions in the K-12 education sector led the way on vaccine mandates.

CUPE, which represents the support staff, came out first.

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Then came the statement Thursday from BC Federation of Teachers President Teri Mooring. “The BCTF supports mandatory provincial vaccinations in the K-12 system for school staff and volunteers,” he said. “Please get vaccinated.”

He also warned teachers that, as with vaccine mandates in other sectors, “there could be consequences (and) the exemptions will likely be extremely limited.”

BCTF’s action was prompted by the NDP’s reluctance to impose a provincial-level mandate, rather than leaving implementation to the 60 school districts as employers.

“At this point, I am very concerned that a district-by-district, employer-by-employer vaccination mandate could be implemented,” Mooring said. “That is the wrong approach. Any vaccine mandate should be implemented at the provincial level and carried out fairly. We cannot have unequal treatment of workers in the public education system ”.

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Earlier in the day, Prime Minister John Horgan had reaffirmed the mosaic approach that would hold school boards and administrators accountable for vaccine mandates.

“They have a responsibility to their employees, first and foremost,” Horgan said, ignoring that most boards and trustees do not want it best to leave a responsibility to the provincial health official.

“I would suggest that they can inform themselves with a simple phone call to get the details and data they need to make informed decisions.”

Most likely, the prime minister who passes the buck is waiting for Dr. Bonnie Henry to issue a province-wide order.

The provincial health official, in turn, may be waiting for more evidence from contact tracing that schools are a source (and not a recipient) of the spread of COVID-19 within their communities.

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But despite all the signals coming from major public sector players, I was struck by a note from a small business about why they and other private sector employers are reluctant to introduce vaccine mandates.

“Who will protect us against a wrongful termination lawsuit if we enforce vaccinations as mandatory in the workplace? Against labor lawyers who are eager to sue employers?

Similarly, I heard about a doctor who is trying to decide what to do with a staff member who is staunchly against vaccines. Why not fire her? He’s afraid she’ll become a cause of celebrity among anti-vaccines, launch a Go Fund Me page, and burden him with tens of thousands of dollars in legal bills to make the shooting stick.

I hope the provincial government will have a myriad of legal opinions to support the applicability of vaccine mandates in a pandemic.

I’m amazed that the province can help drive vaccination by providing those free, publicly funded opinions to small and medium-sized businesses and nonprofits.

There are likely many operators inclined to follow the government’s lead in introducing vaccination mandates to advocate for health and safety in their workplaces.

They just want guarantees that they won’t be ruined in the process.

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