Can you refuse to work alongside an unvaccinated colleague in B.C.?

Can British Columbians refuse to work alongside a colleague who hasn’t been vaccinated against COVID-19?

It’s a question some employees are asking amid sluggish new vaccination numbers and consistently high daily new case numbers, driven primarily by unimmunized British Columbians.

It’s also a question without a clear answer from either officials or experts in the field.

“It is an important worker safety issue, but for the technical advice on how that plays out within an individual workplace, I would refer people to WorkSafeBC,” provincial health officer Dr. Bonnie Henry said when quizzed on the prospect.

But when Global News contacted WorkSafeBC, the organization declined an interview request and referred the matter to B.C.’s labour minister.

Labour Minister Harry Bains, in turn, referred the issue back to WorkSafeBC.

2:14 Opposition challenges NDP government over vaccination of teachers and staff in B.C. schools

“The situation would be different from one (employer) to another. So they (WorkSafeBC) would be coming in, if the worker and the employer is unable to resolve the situation,” he said.

So what do experts in the field of employment law think?

Global News spoke with two lawyers who focus on workplace issues, who agreed only that there was a lack of clear direction from government.

“I think the best guess we have right now is that the answer is going to be no, you can’t outright refuse to work with someone because they’re unvaccinated,” Jenson Leung, an associate with Samfiru Tumarkin told Global News.

“But what employers are obligated to do is make sure they are taking reasonable safety precautions, so masking, physical distancing, hand cleaning, all the usual good practices that we’ve been doing for the last two years now.”

Leung said employers may need to look at other measures such as remote work, shift changes or moving staff members workplaces in order to accommodate employees’ concerns about their colleagues vaccination status.

Paul McLean, a lawyer with Mathews, Dinsdale & Clark saw it another way.

2:07 B.C. care homes want staff included in third dose booster vaccines

“I would say yes — the challenge is if you’re in the workplace as a vaccinated person, and you have someone in that workplace who is unvaccinated, there’s a much greater risk of infection to you as a vaccinated person,” he said.

Under B.C.’s Workers Compensation Act, being forced to work in close proximity to an unvaccinated colleague could give someone grounds to refuse unsafe work, he said.

“With what we know now about the Delta variant (masks and distancing alone) might not be sufficient,” he said.

“It might have been sufficient 12 months ago, but the science changes and I think employers have the obligation to change along with it.”

Decisions by employers may eventually render the question moot.

B.C. has already announced vaccine mandates for health-care workers and employees in the public service, while the federal government announced new mandates for federal public employees and workers in the transportation sector on Wednesday.

Companies in the private sector may follow that lead.

As of Wednesday, 88.4 per cent of eligible British Columbians had received at least one dose of vaccine, while 81.9 per cent had received two doses.