As vaccination numbers rise, COVID-19 case numbers fall and public health restrictions loosen across British Columbia, more and more employers are considering implementing vaccination status policies. Examples of this sort of policy include requiring employees to prove they have been vaccinated before entering certain workplaces, or restricting unvaccinated individuals from entering a store.
In recently released policy guidance, B.C.’s Human Rights Commissioner outlines its view that vaccination policies need to strike a balance between upholding individual rights and protecting collective rights to health and safety.
In this article, we provide a brief overview of the Commissioner’s Guidance and how it will impact employers who are considering implementing vaccination status policies.
Human Rights Considerations
Businesses must be sure that any policy they implement does not violate the rights of people who have not received the COVID-19 vaccine due to a personal characteristic protected in B.C.’s Human Rights Code. The Code protects individuals from unreasonable discrimination in employment, services and housing. The protected grounds under the Code include place of origin, religion, physical or mental disability, and family status.
The Commissioner’s Guidance points out two competing issues arising from the intersection of vaccination policies and the Code, namely that “no one’s safety should be put at risk because of others’ personal choices not to receive a vaccine,” and just as importantly “no one should experience harassment or unjustifiable discrimination when there are effective alternatives to vaccination status policies.”
However, in the Commissioner’s view, a person “who chooses not to get vaccinated as a matter of personal preference—especially where that choice is based on misinformation or misunderstandings of scientific information—does not have grounds for a human rights complaint against a duty bearer implementing a vaccination status policy.”
The Commissioner further explains its view that there are “limited circumstances” where businesses and service providers can require proof of vaccination. To ensure that any such policy will be upheld, the Commissioner recommends organizations consider six principles (or ideals) relevant to the justification of such policies: the goal of ensuring equitable access, the importance of making decisions based on evidence, restricting the imposition of such policies for limited periods of time, ensuring that policies implement measures that are proportional to the health risk, and the overarching goals of ensuring the policies are necessary and minimally intrusive.
The Guidance also draws attention to employer duties toward employees who cannot be vaccinated because of a Code-protected ground. In particular, such employees must be accommodated to the “point of undue hardship”. Examples of such accommodation could include exempting an employee from a vaccination status policy provided they wear a face mask, work remotely, get tested periodically for COVID-19 or work at a physical distance from others. The “point of undue hardship” is highly fact-dependent, though it is often reached when accommodation would be inordinately expensive or create health and safety risks for others.
The Commissioner also draws attention to the need for business and service providers to make sure that any collection, use or disclosure of personal health information such as vaccination status abides by privacy laws. If a policy requires the determination of an individuals’ vaccination status to address a specific safety risk, any confidential information must be collected in the least intrusive way possible. It should also only be collected to the extent that it is necessary to protect safety and facilitate accommodation. Furthermore, there should be safeguards in place to make sure that information is stored securely and held for no longer than allowed under any applicable privacy legislation.
We note that Canada’s privacy Commissioners have already weighed in on this point, also advising a cautious approach to the use of immunization records or “vaccine passports” (their joint release can be found HERE).
As employers and service providers consider vaccination status policies, it is crucial that they are proactive in addressing human rights (and privacy) implications. Employers should also ensure that any policy they implement is evidence-based, subject to regular review, and grounded in the particular context of their business, while remaining mindful of current public health guidance.
We will continue to provide updates on the ongoing COVID-19 pandemic and associated Provincial and Federal responses. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the firm’s COVID-19 website resources.