Firing of B.C. health worker who refused COVID-19 vaccine upheld at arbitration

A tray of COVID-19 vaccines are seen at an immunization clinic run by the Fraser Health Authority.

A health-care worker fired after confirming she had "absolutely" no intention of complying with B.C.'s COVID-19 vaccine mandate has lost a grievance against her former employer.

In a decision this week, a labour arbitrator found Lori Capozzi's steadfast refusal to get vaccinated, despite a provincial order requiring all public health workers to do so, had left Fraser Health with few options but to terminate her employment.

"Clearly, the grievor has the right to make her personal choices, and I accept she strongly believes in her views," arbitrator Koml Kandola wrote.

"However, the result of those choices was that she rendered herself, by virtue of the terms of the order, ineligible to work."

Capozzi had been a substance abuse counsellor for the health authority for seven years when B.C. began mandating vaccination for health-care workers last summer.

The requirement initially only applied to employees in long-term care homes and assisted living facilities, but was soon expanded to include everyone working under the province's six health authorities.

Kandola noted B.C.'s public health order does not require employers to fire unvaccinated workers, and Capozzi's union suggested she could have remained on unpaid leave instead.

But Fraser Health disagreed, arguing that firing the 460 of its employees who refused vaccination was the only reasonable course of action.

Ken Casorso, executive director of people services for the health authority, told the arbitrator keeping unvaccinated employees on leave for unspecified periods of time would have forced Fraser Health to fill their shifts with temporary contracts – a difficult proposition he said would likely to lead to "a lot of staff churn."

The arbitrator heard temporary positions are "considered undesirable and difficult to fill, with temporary shifts lacking an end date as amongst the least attractive."

"This evidence was not persuasively challenged by the union," Kandola wrote.

In her decision, the arbitrator stressed the grievance was not about the validity of B.C.'s public health order, or the merits of vaccination. Rather, it was about whether Fraser Health had reasonable cause to fire Capozzi given the existence of a province-wide mandate that impacted her ability to do her job.

The order has no expiry date, and Kandola quoted from a Nov. 1, 2021, news conference in which provincial health officer Dr. Bonnie Henry said the vaccination requirement "is not just for getting through this wave right now, it's for that longer-term protection as we learn to live with this virus over time."

“If people are in our health-care system and not recognizing the importance of vaccination, then this is probably not the right profession for them, to be frank," Henry said.

There are exemptions available to health workers who can't get vaccinated for medical reasons, but not for those who refuse on religious grounds. Capozzi said her opposition to vaccination was based on religion, rendering her ineligible for an exemption, according to the decision.

The substance abuse counsellor's position has since been filled, and she has been counselling clients through her own business.

Kandola acknowledged getting fired has been "very difficult" for Capozzi, but noted that Fraser Health gave her ample notice about the consequences of her decision, and provided multiple opportunities to receive her shots.

"She confirmed she was not and did not ever intend to become vaccinated," the arbitrator wrote.

"Simply put, there was no path forward for the grievor for continued employment."