Can SFU and UBC make their own COVID safety rules? No one wants to say

As universities in Ontario and elsewhere begin, one by one, mandating COVID vaccinations for anyone attending or visiting campus in September, BC universities seem reluctant or unable to make their own rules.

Provincial health officer Dr Bonnie Henry has not said outright that the province has directed institutions to follow her office’s guidance to the ‘t’, but mandate letters sent to schools from the Minister of Advanced Education earlier this year appear to show otherwise.

At a news conference earlier this week, Henry said administrators have not been directed against imposing their own mask or vaccine mandates.

But in 2021/2022 mandate letters to each college and university in BC earlier this year, Advanced Education Minister and Burnaby-Deer Lake MLA Anne Kang communicated her expectation that provincial guidelines around COVID safety in post-secondary institutions would be followed.

“Government has identified its 5 foundational principles, listed above, and these are to be reflected in all aspects of your institution’s operations (e.g. strategic plans, programming, services, and staffing practices),” Kang’s office wrote to post-secondary institutions.

“Work with the ministry to resume full on-campus learning and services for students, faculty and staff by fall 2021, following the direction and guidance of the provincial health officer and the COVID-19 Go-Forward Guidelines for B.C.’s Post-Secondary Sector, and support your academic communities throughout 2021/22 as you respond to COVID-19 impacts and recovery.”

The mandate letters were sent out in early June, and therefore link to outdated guidance that was updated around the same time. The most recent guidance was released on July 5, and Henry has said the province is working to “refine” that guidance in the face of rising case rates.

Henry didn’t directly answer a question from the Beacon Thursday about whether universities can or should put in place their own rules on things like vaccinations and masking if they see fit.

“These are questions that we are addressing with our provincial committee, working together with the post-secondary institutions in the province. They’re very important questions. We have always had a collaborative approach, we have the basic guidance that we put out, and we are refining it as we learn more,” she said.

“These are active discussions right now. What is the role of masking? What is the role of immunization? And we will have more to say about that next week.”

The Ministry of Advanced Education directed all inquiries to the Ministry of Health.

When the Beacon asked the Ministry of Health “whether universities in BC are allowed under current legislation/public health orders to set their own COVID safety measures on matters like vaccination and masks… have they been told to abide only by the provincial guidance?” it again did not receive a direct answer to its question.

“Public health has been working closely with a team of experts from the post-secondary sector, regional health authorities and the BC Centre for Disease Control to create The Return to Campus Guidelines,” the ministry said.

“These guidelines provide post-secondary institutions throughout the province with basic guidance they need to support a safe teaching, learning and workplace environment. Public health is currently reviewing these guidelines in consultation with the post-secondary sector and will have more to say on this subject next week.”

In response to an open letter from SFU faculty and staff calling for increased safety measures, SFU president Dr Joy Johnson told the university community she “is in constant contact with our health authority partners and the provincial health office, and rel[ies] on their guidance and deep knowledge of the specific facts of how COVID-19 is being transmitted in BC to inform our decisions to keep the SFU community safe.”

“For the foreseeable future we will remain in regular communication with public health leaders and in a state of readiness to shift protocols when needed,” Johnson wrote.

Multiple staff and students at SFU have told the Beacon that SFU administration has given the impression that they are unable to exceed or to go “above and beyond” provincial guidelines.

“What I’ve heard from administration at the university is that they’re not allowed, or they’ve been asked not to impose any public health measures above and beyond what the public health officer has dictated. So for example, if there’s no mask mandate, at universities or colleges, a post-secondary institution is not supposed to implement a mask mandate,” health sciences professor Scott Lear said.

“I don’t know where the legality is, but I’ve just heard … that’s what they’ve been told—they’re not allowed to implement measures beyond what the public health officer has already implemented.

SFU said it was unable to make Johnson or anybody else within the university’s administration available for an interview with the Beacon.

Nor did an SFU representative directly answer a question on whether the school is willing or allowed to exceed provincial guidance, pointing the Beacon instead to a portion of Johnson’s statement that said the university is “in discussions about mask requirements.”

UBC president Dr Santa Ono, meanwhile, released a statement Friday stating his support for mandatory vaccinations and indoor masking—but stopping short of actually putting those rules in place.

“I have shared with the provincial government that I am supportive of mandatory indoor masking and vaccination,” he wrote.

“First, I believe that instituting both will be critical to allow us to start the term with the confidence of our community. Second, just as the provincial health officer has mandated vaccination for all working in long term care facilities, I think we should do the same, at least in high-density residences and high contact circumstances such as varsity athletics and theatre/music, in light of the surge in cases driven by the delta variant of SARS-CoV2.”

While she remained vague on the rights and abilities of post-secondary institutions to decide their own rules on vaccines Thursday, Henry was firm on the rights of businesses, however.

She said businesses can “absolutely” decide to make vaccinations mandatory for employees, calling it a “business decision” that will have to be made based on relative risk and with appropriate legal advice.

Henry said those decisions can be made without a public health order coming from her.

As reported by CBC, experts say businesses would need to clear a “high bar” to prove that mandating vaccines would be essential for employees to do their jobs safely without related legislation—although there is precedent for it in the healthcare industry, with vaccinations being mandatory against influenza and now against COVID for workers in long-term care and assisted living facilities.

Under the University Act and the Colleges and Institutes Act respectively, SFU and BCIT, both located in Burnaby, are considered corporations by the province, although they are not governed by the Business Corporations Act.

There are currently no public health orders applied to post-secondary institutions related to the pandemic, after the order around workplace and post-secondary institution safety was repealed July 1.

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