Mediation Myths

Thinking about mediation? There are many misconceptions and misunderstandings that can be a barrier to mediation. And many of them are myths! In my practice as counsel and a mediator, here are five common myths I hear regularly: 

1. Agreeing to mediation is “a sign of weakness.”  

It is not a sign of weakness to agree to mediate! No matter how strong your case is (as to the facts, the law, or the intensity of your emotions), a settlement in which you had a say is always better than a decision made by a judge months and months down the road, with piling legal fees. There are also mediations called on one party to the other via a Notice to Mediate. In that case, not attending a mediation has procedural consequences for your court case. 

2. Mediations are only about money. 

They can be about money, but most mediations are about more than that. There is no denying that some mediations can feel very transactional and can focus solely on an exchange of money offers. However, many meditations are truly transformative for those in attendance. Mediations of workplace conflict between colleagues make a significant difference to those involved, and they seldom include money exchanges. 

3. What I say at a mediation might be used against me.  

Not so! Discussions during mediation are confidential and the parties cannot rely on their exchanges further down the road as evidence of liability. The mediator will ask the parties to agree to confidentiality in the agreement to mediate. 

4. The mediator might not think I have a good case 

The mediator will be a facilitator for the parties to reach a mutually agreed on settlement. Some mediators can assist the parties with an evaluation of the strength or weakness of their case. If the mediator is an expert in the area of the law, an evaluation of the parties’ case maybe very useful to assess risk and best and worst alternatives to a settlement. Yet, the mediator is not a judge and does not provide legal advice or make any decisions. 

5. I have to sit in a room with the other side.  

Not necessarily. Mediations can also take place in two different rooms (either physical rooms, or zoom rooms), with the mediator “shuttling” back and forth between the two rooms. A trauma-informed mediator will fully assess the best format with the parties in pre-mediation calls.  

 

Thinking about mediation? Forte Workplace Law has a growing mediation practice. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information. 

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.  

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

How Do I Fire Someone Properly?

5 TIPS FOR EMPLOYEE TERMINATIONS 

As an employment lawyer, one of the most common questions I get from employers is “How do I fire someone properly?” Proactive work can save a lot of stress and expense, compared to a “fire now, ask questions later” approach. Here are 5 things to think about when terminating an employee.   

1. With or without cause? 

If you terminate with cause, the employee could be terminated effective immediately and would not be entitled to any severance. However, proving that you have cause to terminate an employee is a high bar to meet. “Cause” means that an employee has engaged in some type of serious misconduct that would justify dismissal without further warnings or other types of progressive discipline. Most terminations are without cause and advance notice and/or severance pay is required. 

 2. Start with the employment contract

When an employee is fired without cause, calculating how much severance pay is owed can be straightforward if there is a valid and enforceable termination clause in their employment contract. Most employees are governed by the BC Employment Standards Act (ESA), which outlines the basic standards of compensation and conditions of employment—it sets the minimums. If the amount of pay or notice in the contract falls below the minimum termination notice required by the ESA, the termination clause is invalid, and an employee could be entitled to severance under the “common law”.  

3. Consider human rights

The BC Human Rights Code helps protect people from discrimination in the workplace. In plain language, discrimination means treating someone badly or denying them a benefit based on a personal characteristic that is protected by the Code. Employees may file a complaint with the Human Rights Tribunal if they believe they have been discriminated against by their employer. As such, you cannot fire your employee on the basis of any protected human rights ground. If the employee can prove that their protected characteristic, such as age, was a factor in the adverse impact, for example the termination of their employment, you could be found to have discriminated against your employee. Since the remedy for a human rights claim can be substantial and includes wage loss and injury to dignity damages, it’s important that you do not terminate an employee based in any part on their protected personal characteristics. Protected personal characteristics for employment can be found here: http://www.bchrt.bc.ca/human-rights-duties/characteristics.htm. 

 4. Write it up

An employer must be as clear and concise as possible when communicating a termination of employment. In advance of the termination meeting, prepare a termination letter to give to the employee at the meeting. The letter should include a specific date of termination, and in some cases, could include a severance offer in exchange for a Full and Final Release from the employee. Remember, however, that you cannot ask an employee to sign a Release in order for them to receive their basic minimum entitlements under the ESA. Termination letters should be prepared meticulously with careful reference to the employee’s contract and the requirements of the ESA. Even innocent mistakes can be costly.  

5. Respectful delivery

You may want to start the termination meeting by acknowledging that this was a difficult decision to make for the company. You are not obligated to explain or give reasons for the termination. Ideally, you should go over the contents of the termination letter as briefly as possible. If possible, conduct the termination meeting with another employee present, preferably an office manager or supervisor, so that you have a witness—especially if it’s expected to be a difficult meeting. If you’ve presented the employee with a severance offer and Release, they should be given adequate time to review the information and be provided with an opportunity to seek legal advice. 

 

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

What is Mediation?

Has your lawyer or employer suggested mediation of your legal case or conflict? Understanding what mediation is (and is not) is the first step to an informed decision. 

Empowerment & Recognition 

Mediation is generally defined as an informal process in which a neutral party with no power to impose a resolution helps the disputing parties try to reach a mutually acceptable settlement. While this quick definition describes the major features of the process, it does not in my view, fully account for the potential that mediation has of transforming people.  

By the mediator helping the parties wrestle with difficult circumstances and bridge differences in the midst of conflict, mediation has the potential to provide the parties with a sense of empowerment and recognition. Empowerment comes from restoring the parties’ confidence in their ability to resolve their own issues. Recognition comes from the impartial listening by the mediator, and it is often the by-product of the process itself, when the parties acknowledge the view of each other.

A Day Dedicated to Sorting Things Out 

My years of practice as in-house counsel, head of employee relations and lawyer in private practice, had me attend multiple mediations. On some, I have been counsel for one of the parties. On some, I have been a party. Recently, I started a mediation practice. What I enjoyed the most out of mediations as a party or counsel, is the fact that it is a day dedicated to sorting things out.  

Lingering conflict finally has a forum – a time and a place – to be dealt with. And even when there was no settlement, much can be accomplished by understanding the other side’s view of the issues and uncovering the interests behind their requests. As a mediator, what I enjoy the most is the unfolding of interests and seeing the parties through to the other side of conflict. I particularly enjoy when creative and unexpected solutions are proposed, and when there are wholehearted efforts at reaching a settlement.  

Mediators are Not Judges 

One thing you will not get from a mediation is a decision by the mediator about who is right and who is wrong. Judges decide disputes and make decisions. Mediators facilitate negotiations and agreements between the parties. This is a key difference to understand before agreeing to mediate – there is no winner and no looser. 

Thinking about mediation? Forte Workplace Law has a growing mediation practice. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information. 

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.  

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

British Columbia Government Introduces Bill 13 – Pay Transparency Act

On March 7, 2023, the British Columbia government introduced Bill 13, the Pay Transparency Act, in the British Columbia legislature. Once passed, the Pay Transparency Act will:

  • require employers (unless exempted by regulation) to specify in job advertisements either the expected salary or wage for a job, or range of expected salary or wage (subject to limitations to be set out in regulations);
  • prohibit employers from asking about an employee’s pay history from other positions (unless that information is publicly available, such as senior public servants);
  • prohibit reprisals against employees who inquire about pay or disclose information about their pay to other employees;
  • require the government to publish an annual report setting out differences among certain groups of individuals in relation to pay, a description of trends in relation to those differences, and the number and nature of reports of employer non-compliance in the year; and
  • require “reporting employers” to prepare, on or before November 1 of each year, a pay transparency report.

A “reporting employer” is defined in the statute as government employers and certain government agencies and crown corporations, as well as private sector employers with the following numbers of employees on January 1 of each applicable year:

(a) for 2024, 1,000 or more;

(b) for 2025, 300 or more;

(c) for 2026, 50 or more;

(d) for a year after 2026, more than the lesser of 49 and any number set out in regulations.

The details of what will be required in pay transparency report will be established by regulation after Bill 13 passes into law.

Bill 13 also specifies that the newly created office of the Director of Pay Transparency must consult with affected Indigenous governing entities prior to completing an annual report.

All sections of the bill will come into effect on royal assent, except for the requirement to specify wages in a publicly advertised job opportunity, which is scheduled to take effect on November 1, 2023.

Bill 13 will undoubtedly be welcome news to employees and job seekers. For employers, the impact of Bill 13 on operations remains to be seen, dependent on the details established later by regulation.

The lawyers at Forte Workplace Law are experienced in helping employees understand their rights, as well as helping employers understand and comply with new regulatory obligations. We would be pleased to assist both employees and employers navigate the Pay Transparency Act once it becomes law.

 

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Are Non-Competes Enforceable?

A non-compete is a “restrictive covenant”.

What is a restrictive covenant?

In employment contracts, restrictive covenants are clauses that stop employees from doing specific things. Examples of restrictive covenants are:

    • Confidentiality clauses – stop employees from sharing confidential information.
    • Non-competition (non-compete) clauses – stop employees from working in competing businesses.
    • Non-solicitation clauses – stop employees from taking clients or other employees with them when they change jobs.

Are restrictive covenants enforceable?

Courts do not like to stop employees from working, but also recognize that employers need to be able to protect their business. Courts will enforce “reasonable” restrictive covenants that go “no further than necessary” to protect the employers’ interests.

What does “reasonable” and “no further than necessary” mean?

When deciding whether to enforce a restrictive covenant or not, the court will consider whether it is limited in time, geography and scope. The Court will also consider whether the terms are clear, certain, unambiguous, overly broad or against the public interest. The clearer, narrower and less restrictive the restrictive covenant is, the more likely it is to be upheld.

Will the court fix a poorly drafted clause?

Generally if any part of the restrictive covenant is defective or unreasonable, the whole clause fails.

Case Study

In the case of IRIS The Visual Group Western Canada Inc. v. Park 2017 BCCA 301, Dr. Park provided contract optometrist services to Iris. Dr. Park’s agreement with Iris contained a non-competition clause that was meant to stop her from working in a competing business within 5 km of Iris. Dr. Park stopped providing services to Iris and set up her own optometrist practice 3.5 km away. Iris sued Dr. Park to enforce the non-competition clause.

The non-competition clause read:

  1.       NON-COMPETITION

7.1      The Optometrist hereby covenants and agrees that during the term of this Agreement and for a period of three (3) years from the date this Agreement is terminated the Optometrist will not, without first receiving the written consent of OpCo and IRIS do any of the following:

(a)        Compete either directly or in partnership or in conjunction with any person or persons, firm, association, syndicate, company or corporation, directly or indirectly carry on or be engaged in any part thereof or be employed by any such person or persons, company or corporation carrying on, engaged in, interested in or concerned with a business that competes with OpCo or IRIS within 5 km of the Location. For greater clarity, a “business that competes with OpCo or IRIS” is defined as any entity that dispenses performs [sic] any sort or [sic] prescription or non-prescription optical appliances including eye glasses or sunglasses, vision correcting lenses and contact lenses, or is an optical retail dispensary, optometry clinic, an ophthalmology clinic, or any laser eye surgery centre and/or any location that performs optical refractions and/or complete or partial eye examinations or eye health assessments,

(b)        disclose to any person, firm or corporation any information concerning the business or affairs of OpCo or IRIS at the Location, including, without limitation, the customer list for the Business.

(c)        solicit, interfere with or endeavor to entice away any customer, patient, company or organization that is in the habit of dealing with OpCo or IRIS or to interfere with or endeavour to entice away any of OpCo or IRIS’s employees or optometrists.

The Court found the clause to be unenforceable and refused to fix it. Amongst other criticisms, the Court said that the clause was overly broad, ambiguous and went further than was necessary to protect Iris interests.

Takeaway

Restrictive covenants need to be drafted carefully, clearly and narrowly or they will not be enforceable.

Need help with a restrictive covenant? Give our team a call.

 

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

BC Court Awards Punitive Damages to Employee based on Errors in Employer’s Termination Letter

The fine print matters in termination letters, even in mass layoffs. The wrongful dismissal case of Moffatt v. Prospera Credit Union, 2021 BCSC 2463 is a cautionary tale for employers in British Columbia.   In Moffatt, the Court took the highly unusual step of ordering the employer to pay punitive damages for mistakes in its termination letter.  In doing so, the Court recognized the vulnerability of recently terminated employees:

This is a situation concerning recently terminated employees who are potentially significantly vulnerable, and in distress.  The Defendant’s lack of attention to detail in the termination letter, especially where the errors fall so clearly in their favour, is unacceptable, and draws an award of punitive damages.

The errors in the termination letter included: (1) an offer of two weeks pay pursuant to the Employment Standards Act which was less than the three months the employee was entitled to receive based on her employment contract, and (2) a doubling of the non-solicitation period of the employee’s contract. The Court also noted that the employer instructed the employee to sign a release of claims within one week. 

Punitive damages are rarely awarded in wrongful dismissal cases. The Supreme Court of Canada has stated that “conduct meriting punitive damages awards must be ‘harsh, vindictive, reprehensible and malicious’, as well as ‘extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.’” Honda Canada Inc. v. Keays, 2008 SCC 39.

In Moffatt, the employer argued that the errors were not intentional, harsh, vindictive, reprehensible or malicious, but were an oversight that occurred while preparing over 100 termination letters as part of a reorganization.  Basically, the argument was that it was just a mistake.  In rejecting this argument, the Court stated:

[T]here is an obligation on an employer terminating an employee in such circumstances to act in good faith and reasonably.  A ‘cookie cutter’ termination letter drafted without regarding to the individual circumstances of each employee falls short of the standard required.

* * *

The volume of termination letters an employer issues does not lessen the obligation to ensure they are correct.  There is no volume discount on correctness for termination letters. 

The employer also argued that it was willing to correct the errors when the employee’s lawyer pointed them out.  The Court  refused to let the employer off the hook:

The Defendant’s argument highlights the crux of the problem.  In this instance, the Plaintiff hired a lawyer.  Had she not, these errors may not have been discovered and corrected.  Given the circumstances of a termination, and its highly emotionally charged nature, it is equally as likely that the plaintiff, or others in her position, could have simply signed the termination letter.

The Court acknowledged the test for punitive damages from Honda but noted that punitive damages may also promote the goals of deterrence and denunciation.  The Court went on to award punitive damages for the “purposes of deterrence and denunciation” in the amount equivalent to two-and-a-half months’ salary which was the amount the employee would have lost if she had signed the termination letter.  While not calculated in the decision, this appears to be around $7,500 in punitive damages.  The punitive damages were in addition to an award of 3 months’ pay in lieu of notice.

Lesson for Employers:  Termination letters should be prepared meticulously with careful reference to the employee’s employment agreement and the requirements of the Employment Standards Act.  Even innocent mistakes can be costly. 

Lessons for Employees:  Do not take an employer’s termination letter at face value.  Refer to your employment contract and the Employment Standards Act before signing a termination letter or release and have your termination package reviewed by an experienced employment lawyer. 

  1.  

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Layoff in the News

Layoffs in the News – What are the Rules?

With recession in the headlines and daily reports of companies in the tech sector laying off large numbers of employees, many people are wondering what the difference is between a layoff and a termination and what their rights are in either circumstance.  Here are some frequently asked questions, answered for non-unionized employees in British Columbia.

My employer told me I have been laid off.  What does that mean?

A layoff in most cases is the same thing as being terminated or fired.  Once an employer is no longer providing work to be done or paying an employee, employment has ended.  Since layoffs are driven by the financial circumstances or strategic decisions of the employer, and not employee misconduct or poor performance, notice or severance pay is owed.

Employers can only lay off an employee without effectively terminating their employment if:

  1. The employment contract expressly allows for temporary layoffs;
  2. Layoffs are a well-known and longstanding industry-wide practice (like in logging where work cannot be performed at certain times of the year); or
  3. The employee agrees to the layoff.

Even if one of these conditions apply, the layoff must be short-term and temporary under the BC Employment Standards Act.  Unless one of these conditions exists, then a layoff is the same as a termination of employment.

If I am laid off because my company is having financial trouble, do I still get severance pay?

Yes, in most cases you are still entitled to reasonable advance notice of termination or severance pay. The employer’s financial situation generally does not impact your entitlement to severance pay.  Unless there is a bankruptcy or other similar legal proceeding underway, the financial situation of the employer does not impact the requirement to pay employees severance or provide notice.

What if I am part of a large group of employees being laid off?

If 50 or more employees are terminated from the same location within a 2-month period, as a minimum standard, the employer is required to give specific notice, or pay in lieu of notice as set out by the BC Employment Standards Act.  The amount of notice depends on how many employees are being laid off but can range from 8 weeks to 16 weeks.

Over and above the Employment Standards Act minimum requirements, employees are often entitled to common law severance.  In determining how much severance pay is required, judges will consider availability of alternative employment.  In an industry downtown or recession, this may mean that more severance is owed than in a job seekers market.

Do I need to hire a lawyer if I am laid off?

An employment lawyer can assess your severance pay entitlements taking into consideration your contract, legislation, and legal precedents, so you know whether what you have been offered is fair and reasonable.  If the offer is not reasonable, our lawyers will build a gameplan with you to negotiate for something fair.  In most cases this can be done in a single meeting, for a flat fee.  We don’t take a percentage of your severance pay.  Contact us at [email protected] or 604-535-7063 for more information.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Four Things to Consider When Adopting a Parental Leave Policy

Employers typically consider maternity and parental leave policies when they want to incentivize employees to return from their leaves after having a child, and also when they realize that supporting their employees financially while on a period of a reduced income makes sense for long term employment relationship. Particularly, in the current Canadian job market which has been described as a “candidate” job market. Here are four things to keep in mind:

1. Is a policy necessary?

Unless there is anything additional or extra that you are providing your employees, your workers may already be protected by B.C.’s Employment Standards Act (the “Act”) (see sections 50 and 51), and the Employment Insurance (EI) regime. If your workforce is excluded from the Act (as are architects, engineers, lawyers, naturopaths, insurance agents, and others) you can still use the Act as a reference for how to manage these types of leaves[i].

2. What you need to know to get started.

If you decide that your organization needs a policy, make sure you understand the difference between:

    1. Maternity Leave, which includes an EI benefit maximum of 17 weeks. This benefit is for the person who is about to, or has, given birth; and
    2. Parental Leave, which includes an EI benefit maximum of 35 weeks (“standard”) or a maximum of 61 weeks (“extended”). This benefit is for either parent, or for adoptive parents.

Keep in mind that the parental leave can be taken once the maternity leave has expired, turning the standard leave into 52 weeks, and the extended leave into 78 weeks (18 months). Also keep in mind that Parental leave can be taken at any time within the first 18 months of the child’s life, or the first 18 months of the child being placed with the adoptive family.

3. Will you top up?

If you are providing your employees with a supplementary amount to their EI benefit, or “Top-UP” a policy is definitely recommended. Consider:

a. The reasons behind providing the Top-Up. If your goal is to incentivize parents to return from the leave and to stay with your organization, say so in the policy. Also, a repayment clause may be appropriate. For instance, “should you resign during the leave, or in a period of 6 months from your return from leave, you will repay the amount of the Top-Up in full”.

b. The amount of the Top-Up. Crunch the numbers and determine how much you can afford and for how long you will provide the Top-Up. Also consider what your competitors are doing. Some employers provide 60% of the difference between the employees’ pay and the EI benefit. Others provide much higher percentages, with some employers toping up to 100% of the wages. The period of time can also vary from 6 weeks on the lower end, to the full 78 weeks at the higher end, with most employers capping the top up somewhere between 35 weeks and 52 weeks. Because you will need to know how much the employee is receiving in EI to calculate the Top-Up amount, it makes sense for you to make the employee’s receipt of the Top-Up on the condition that they receive EI.

c. The eligibility for the Top-Up. Is this something you want to provide to all employees as of day one? Or something you want to reserve for your permanent full-time employees with a certain amount seniority? Since this is not a benefit that is required under the Act, you have flexibility as to who gets it and when, as long as you are not running afoul of the B.C. Human Rights Code.

4. What should happen while the employee is away.

If your workforce is covered by the Act, then you need to ensure to continue to calculate annual vacation, to continue benefits and to count their time away to their length of service with your organization, as if the employee was actively at work during that time. If the employee paid some of the premiums for the benefits, you can arrange for the payments to continue to be made by the employee while they are on leave.

Also, upon the end of the leave, employers have an obligation to provide the employee with their same position or an equivalent one. Make sure that anyone you hire to cover the employee that is on leave is hired under a temporary employment agreement with a notice of termination provision that allows you to welcome the employee on leave back without delay.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

[i] The information in this blog applies to workplaces that are provincially regulated and does not apply to workplaces that are federally regulated (i.e. banking, shipping, telecommunications) and covered under the Canada Labour Code (“CLC”). The maternity and parental provisions of the CLC are similar to those of the Act, and can be found at sections 206, and 206 of the CLC.

A Win for Mom – tribunal finds employer discriminated against employee on maternity leave

The Human Rights Tribunal recently found that Prince George Ford (“Ford”) discriminated against new mom Mellissa LaFleche based on sex and family status contrary to the section 13 of the Human Rights Code.  

While on maternity leave, employee Ms. LaFleche went to her employer, Ford for a meeting about her return to work. It was an informal meeting and Ford had not thought through what it was going to say. There was conflicting evidence about what Ms. LaFleche was told at that meeting, but the Tribunal found:

  • “the clear inference from this discussion is that, at best, Ms. Callaghan [the woman filling in for Ms. LaFleche during her maternity leave] would retain marketing manager duties and Ms. LaFleche’s role would significantly change”, (paragraph 44).
  • “It was clear from the surrounding discussion that [Ms. LaFleche] would not be returning to the same duties and role…” (paragraph 45).
  • LaFleche felt humiliated, distressed and nervous about money and lost sleep, her appetite, a sense of security and enjoyment of maternity leave (paragraph 50).

Ford told Ms. LaFleche that it would follow up with her after the meeting about what position or duties it would have for her on her return, but it did not.

The Tribunal considered whether Ford had constructively dismissed Ms. LaFleche – constructive dismissal is a form of termination of employment that occurs when an employer fundamentally unilaterally changes the terms of employment – and concluded Ford had. It ordered Ford to pay Ms. LaFleche significant wage loss damages (about $70,000 less about $3,750 already paid to her) and injury to dignity damages ($12,000). Notably, the award for wage loss damages included both actual wage losses of about 7.5 months wages (about $40,000) and loss of maternity and parental benefits during Ms. LaFleche’ next year long maternity leave (about $30,000).

Take-aways:
  • Moms / New Parents:  Being told by your employer that they like your replacement better and you’ll have different duties on your return to work is discrimination.
  • Employers: absent reasons totally unrelated to the employee’s leave, you need to return employees to the same position they held before going on leave. Think carefully about what you say to employees on leave and about how they could take it.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Mandatory Vaccines for Regulated Health Care Practitioners

Updated: March 21, 2022

The BC Government has revised its plan to mandate vaccines for all regulated health care professionals.  On March 10, 2022, the BC Public Health Officer announced that they will be moving forward with an “informed consent” system for some health care workers which may require disclosure of vaccination status to patients or clients. The new Order was issued on March 7, 2022 and requires regulated colleges to record each registrant’s vaccination status by March 31, 2022.    Vaccination will still be required for health care workers practicing in certain settings. 

 

The landscape of employment law continues to change as BC brings in new measures to manage the ongoing COVID-19 pandemic.  This time, the change affects employees and employers working in regulated health care professions.  

On February 9, 2022, the BC Public Health Officer expanded its vaccine mandate to include health care workers like dentists, chiropractors and other practitioners who are governed by a regulatory college.   According to the new announcement, workers who get a first dose of the vaccine by March 24, 2022, and a second dose between 28 and 35 days after, may continue to work.  

The BC Provincial Health Officer is finalizing the order in consultation with the health professional colleges and further details will be provided about how the vaccine mandate will be rolled out.  As we’ve seen with other government mandates, workers who fail to get vaccinated by the imposed deadline may be terminated or placed on unpaid leave. 

We have worked with many dentists and other regulated health care professionals to navigate the twists and turns of the COVID-19 pandemic, and this will be another challenge for employers to tackle.  That is because government vaccine mandates do not eliminate all risk associated with terminating a worker who refuses a vaccine.  There are a number of aspects to mandatory vaccines that must be handled carefully, including medical exemptions and the privacy of workers’ personal information.   We may see health professional colleges taking a lead role in collecting information about vaccination status and investigating instances of non-compliance, however this does not replace an employer’s legal obligations.  Here are the top three things that those working in a regulated health care profession should know:

 

1. The employer has a duty to accommodate in some circumstances.

In rolling out vaccine mandates, even if they are government ordered, employers still need to consider their responsibilities to workers under the Human Rights Code.  Employers have a duty to accommodate workers who can demonstrate that they are unable to be vaccinated for reasons protected by the Human Rights Code (for example, disability or religion) to the point of undue hardship. In deciding whether it is undue hardship to continue employment of an unvaccinated worker, employers must consider the personal circumstances of the worker, and take into account the safety of the workplace and the requirements of both the government and their regulatory body. 

 

2. An employee’s vaccine status is sensitive health information.

As healthcare practitioners know, personal health information must be handled with care.  This includes vaccine status. The Personal Information Protection Act allows private sector organizations to collect, use, and disclose an employee’s personal information for limited purposes, if appropriate safeguards are in place. This means that employers must have a designated process for protecting the privacy of information about vaccine status which also complies with the requirements of their respective regulatory colleges.  These privacy obligations extend to prospective employees who are applying for a job and are asked to disclose their vaccination status. 

 

3. Mandatory vaccine policies should be drafted carefully.

Employers in a government-mandated industry should have a written vaccine policy that complies with all BC public health orders and is applied consistently.   This policy should address what will happen when a worker has a qualifying exemption and is unable to be vaccinated.  There should also be a clear process for how to collect, use and protect each employee’s private information.

A full list of health care professions affected by the order can be found here

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].