THE 2021 TOP COVID CASES

YOU NEED TO KNOW

USW 1-2017 Convention – Oct 16 , 2021

Craig Bavis
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Employee Privacy and Covid

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Do you think employers can

1. Have a mandatory vaccination policy?
2. Ask employees about their Covid Vaccination
status?
3. Scan employees’ BC Vaccination Card to confirm
status?
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Do you think employers have to

1. Give an employee paid time off to get a Covid
vaccination?
2. Give an employee paid time off for the employee
to take a family member for a Covid vaccination?
3. Give an employee paid time off for the employee
to take a friend for a Covid vaccination?
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Scenario
Employer asks you to attend a meeting because they
want you to attend a meeting where they will ask an
employee, Steve, to show his BC Vaccination Card to
prove he was vaccinated because Steve requested
paid vaccination leave.
Going to the meeting you ask Steve if there is any
reason he can think of for this meeting?
Steve says no, he didn’t get vaccinated on the date of
the leave, he took his next door neighbour to get
vaccinated, but who cares since when they scan his
card, it will show he was vaccinated.
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As a shop steward do you

1. Not worry, the BC Vaccination Card will prove
he was vaccinated
2. Tell the Employer that Steve used the vaccination
leave for the purposes of vaccination without
saying who was vaccinated
3. Tell Steve if he’s asked if he was vaccinated on
that date to tell the Employer he was
4. Tell Steve if he’s asked to tell the truth and
explain why he took his friend
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As a shop steward do you

4. Tell Steve if he’s asked to tell the truth and explain

why he took his friend
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Why is this an issue?

What you are supposed to see What you are able to see
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Ministry of Health Website

www2.gov.bc.ca/gov/content/covid-19/vaccine/proof
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BC Information and Privacy Commissioner

4. Is there more information on the Card than what

organizations see when they scan it using the BC
Vaccine Card Verifier app? Yes. The Card contains
your full name, your date of birth, the date you
received your vaccine(s), where you received your
vaccines, what types of vaccine(s) you received, the
lot number of the vaccine(s), and a digital signature
to prove the QR code is authentic.
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BC Information and Privacy Commissioner

However, the BC Vaccine Card Verifier app is

designed to reveal only your name and vaccine
status. Under the Orders, organizations are not
permitted to use any other app that could disclose all
of the information on the Card; if they do, you can
complain to our Office.
https://www.oipc.bc.ca/guidance-documents/3577
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Is Steve allowed his leave?

52.13   (1)An employee who requests leave under
this section is entitled to paid leave for the period
described in subsection (2) to be vaccinated against
COVID-19.

Employment Standards Act

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Is Steve allowed his leave?

45.03( 2)For the purposes of section 52.12 (2) (f) of
the Act, the following are prescribed situations:
(b)the employee requires leave
(i)to be vaccinated against COVID-19, or
(ii)to assist a dependant who is being vaccinated
against COVID-19.
Employment Standards Regulation
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Is Steve allowed his leave?

45.02  For the purposes of section 52.12 (1) (c) of
the Act, the following persons are prescribed:
(a)a member of the employee's immediate family;…
(c)whether or not related to an employee by blood,
adoption, marriage or common law partnership, an
individual who requires care and who considers the
employee to be, or whom the employee considers to
be, like a close relative.
Employment Standards Regulation
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Steve is disciplined. Do you

1. File a grievance saying Steve was unjustly
disciplined. You’re done, the rest is up to the BA?
2. File a grievance and set out all the reasons why it
is unfair the employer singled out Steve
including the history of disputes with his boss?
3. File a grievance and type out a complete record
of what was said in the meeting, get a statement
from Steve, get copies of documents and policies,
and list the names and contact information for all
involved?
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Steve is disciplined. Do you

3. File a grievance and type out a complete record of

what was said in the meeting, get a statement from
Steve, get copies of documents and policies, and list
the names and contact information for all involved?
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Terrapure Environmental and IUPAT,

District Council 138 (Arnot) 149 C.L.A.S.
TerrEn and Painters, 138 – Covid Discipline

• employer is engaged in industrial cleaning of

equipment and spills,
• employer dispatched a crew, including the
grievor, to the Crofton Mill, which necessitated
the crew staying at a hotel outside of Ladysmith
and shuttling to the mill site about 20 minutes
away.
• while at the mill site, Grievor had diarrhea and
was driven back to the hotel
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TerrEn and Painters, 138 – Covid Discipline

• Employer did not have a published Covid Policy,

but texted the Grievor:
“self isolate and call the 811 number. There has
been reports you have left isolation. You are
required to stay away from all employees. You are
also suspended from the Crofton site until a
negative Covid test can be produced.”
• Grievor used self assessment tool from BCCDC
website , it reported negative for Covid ,and left
he hotel
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TerrEn and Painters, 138 – Covid Discipline

• Grievor told supervisor November 27, 2020, that

he had gone for a COVID test and the line-up
was too long.
• that was a lie and the grievor admitted it was a lie.
• The true facts were that he called 811 and could
not get through and he did a self-test which he
believed did not oblige him to obtain
a COVID test.
• Grievor terminated for insubordination and later
lying during interivew
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TerrEn and Painters, 138 – Covid Discipline

• There is an issue whether the employer alleged

insubordination in failing to call 811, or in failing
to attend and provide a COVID test
• the nature of the demand was that he attend for
a COVID test
•  If it was the employer's intent was that he call
811, then in my view, there has been substantial
compliance by the grievor. He called 811, he did
not get through and then he did the self-
assessment
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TerrEn and Painters, 138 – Covid Discipline

• for the order to be a lawful order it must be one

that is reasonable, based on the circumstances
• the employer knew that the grievor had diarrhea
as a result of eating chicken wings, that he had
been excused from work, and that the grievor had
this symptom during a period of time when
the COVID pandemic was active.
• there is no indication the employer engaged in an
analysis of whether a test demand was justified in
light of what they knew at the time
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TerrEn and Painters, 138 – Covid Discipline

• Discipline for insubordination overturned

• The employer has a legitimate interest in ensuring
that its crews do not become infected
with COVID.
• employer has not proven that the grievor engaged
in insubordinate conduct by a breach of self-
isolation.
• grievor did not return to work at the Crofton Mill
site.
• no evidence the grievor put any of the crew at risk
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TerrEn and Painters, 138 – Covid Discipline

• 5 day suspension for lying during investigation

• The grievor is an industrial worker.
• no issues with how he performs his main job duty,
• does not occupy a position of trust within the
organization. His position does not require the
employer to trust him with money or confidential
information.
• no evidence led in the case that the Grievor
cannot be trusted to perform his job duties;
 BC Ferry Services and BC Ferry and
Marine Workers Union, [2020] BCCAAA
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BC Ferries and BCFMWU – Covid Layoffs

BC Ferries lays off employees due to pandemic low

ferry traffic
One week later  rescind the layoffs and pay 75%
of base salary instead
Collective Agreement requires union consultation
before layoffs
Section 54 of Cpde  60 days notice before
changes re: significant # of employees
union grieved violations of CA and Code
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BC Ferries and BCFMWU – Covid Layoffs

Does the CA Article 12 apply -- was the employer required to

consult prior to layoffs?

TEST – interpretation of collective agreement

Was s. 54 notice under the Labour Relations Code required

prior to layoffs caused by the COVID-19 pandemic?

TEST – statutory interpretation – contextual and purposive

approach to determine first, whether the layoff impacted the
employment of a significant number of employees and, if so,
was it a change for which s. 54 was intended to apply.
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BC Ferries and BCFMWU – Covid Layoffs

No inherent right to lay off employees – must be

founded in contract and the CA. The CA was not
restricted to temporary layoffs. The Article used
general language and referred to “layoffs”. There
was no reason to restrict the scope of the Article by
implication. So it was breached.
But… S. 54 would not necessarily apply to
temporary layoffs and all circumstances outside an
employer’s control, such as the pandemic.
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BC Ferries and BCFMWU – Covid Layoffs

IMPLICATIONS:
Even if 60 days notice under s.54 is not possible,
employer still must fulfill s.54’s objective by
meeting with union to discuss mitigating impacts
Clarifies the scope of residual management rights:
no presumptive right to layoff terms
Once parties have bargained over the rights related
to an issue, bargained terms govern.
Teal-Jones Group and USW, Local 1-1937
(Fothergill) 2021 CarswellBC 3087
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Teal Jones – USW 1-1937 Covid Policy

On the evening of November 17th, Rick Fothergill

["RF"], called his supervisor to report that he was
experienced flu-like symptoms that could be caused
by COVID-19.
In the morning of November 18th, RF told the
supervisor that his symptoms persisted, that he was
going to self-isolate and would make arrangements
to be tested for COVID-19.
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Teal Jones – USW 1-1937 Covid Policy

• The Grievor was asymptomatic. He attended his

scheduled November 18th shift. At a crew
meeting, his supervisor, Mr. Ouellette, asked the
Grievor if he lived with RF.
• When the Grievor replied in the affirmative, he
was sent home for the balance of the shift, not
permitted to attend work on November 19th and
20th and remained off until his first scheduled
shift after RF received a negative test result.
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Teal Jones – USW 1-1937 Covid Policy

Company Covid Policy

Anyone with Flu-like symptoms, or anyone with
family members experiencing Flu-like symptoms,
such as sore throat, fever, sneezing or coughing,
must notify their supervisor, and contact their local
health authority for guidance on how to proceed,
including compliance with testing, and self-isolation
at home for the minimum prescribed time-frame
from onset of symptoms and until symptoms have
completely resolved
Teal Jones – USW 1-1937 Covid Policy

the Grievor was sent home on the basis of a self-

report by an untested symptomatic parent based on
an ambiguously worded policy and an interpretation
that was not supported by the prevailing health
information.
it was unreasonable for management to apply the
policy without considering possible options for
mitigating the impact of the policy on the employees
including options that permitted the Grievor the
opportunity to remain at work