Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
British Columbia’s Office of the Human Rights Commissioner (BCOHRC) recently released A human rights approach to proof of vaccination during the COVID-19 pandemic (Guidance), which offers general advice on how employers and other “duty bearers” (e.g., landlords and service providers), can respect human rights when developing “vaccination status policies,” i.e., policies that require employees to provide proof they have gotten a COVID-19 vaccination to be permitted access to the workplace.
Notably, the Guidance indicates that employers may implement vaccination status policies only if the following conditions are met:
- Other less-intrusive means of preventing COVID-19 transmission are inadequate for the setting; and
- Due consideration is given to the human rights of everyone concerned.
Acknowledging that the promotion of human rights must be at the core of its response to the COVID-19 pandemic, the Guidance emphasizes that a careful balance must be maintained between the rights of those who have not been vaccinated due to a protected ground under the Human Rights Code (HRC) of British Columbia (BC) (e.g., place of origin, religion, physical or mental disability, family status), and individual and collective rights to health and safety.
The Guidance provides the following direction to employers regarding the establishment of reasonable vaccination status policies:
- If an employee is unvaccinated due to an access issue (e.g., competing responsibilities, a language barrier, limited access to technology for booking appointments, a disability), the employer should do all it can to help the employee get vaccinated.
- Vaccination status policies:
- Must be aligned with up-to-date public health recommendations and reflect the current medical and epidemiological understanding of the specific risks the policy aims to address;
- Should be used for the shortest possible length of time, regularly reviewed and updated to match the most recent conditions of the COVID-19 pandemic, and reflect up-to-date public health recommendations;
- Must be proportional to the health and safety risks they seek to address. As vaccination rates in BC increase and risks decrease, employers should relax their rules about vaccination status;
- May be implemented only if less-intrusive measures are insufficient to prevent transmission in a given setting (see public health and WorkSafeBC guidance), and provided the employer takes into account its duty to accommodate under the HRC.
- The collection, use or disclosure of vaccination status must be authorized by applicable privacy laws. Federal, provincial and territorial Privacy Commissioners have released relevant guidance.
Human Rights Claims
The Guidance indicates that the following individual will not have grounds for a human rights complaint against an employer implementing a vaccination status policy: “a person who chooses not to get vaccinated as a matter of personal preference – especially where the choice is based on misinformation or misunderstanding of scientific information...”
Accommodation and Undue Hardship
The Guidance emphasizes that under the HRC, accommodation “to the point of undue hardship” must be provided to individuals who cannot be vaccinated due to a Code-protected ground. Noting that the “point of undue hardship” is fact-dependent, the Guidance indicates that it is often reached when accommodation would create health and safety risks for others or be inordinately expensive. The following examples of possible accommodations are provided in the Guidance: wearing a face mask; working at a physical distance from others; working a modified shift; getting tested for COVID-19 periodically; working remotely; and accepting a reassignment to a setting that poses less risk of transmission.
The Guidance also notes the importance of collecting confidential information in the least-intrusive manner possible and only to the extent necessary to protect safety and facilitate accommodations. Furthermore, it emphasizes that information should be stored securely and held for as long as directly needed in accordance with applicable privacy laws.
Bottom Line for Employers
Although it does not have the force of law, the Guidance provides useful advice to employers in BC regarding how they can respect human rights and address privacy considerations when developing vaccination status policies. In accordance with the Guidance, employers are encouraged to align their policies with up-to-date public health recommendations; ensure they reflect the current medical and epidemiological understanding of the risks; and regularly review and update them to match the most recent conditions of the COVID-19 pandemic.
Two key points that come out of the Guidance are that any vaccination status policy:
- Must be proportional to the health and safety risks they seek to address, which seems to suggest that an employer should balance health and safety considerations as they relate to human rights and privacy issues; and
- May be implemented only if less-intrusive means are insufficient to address the problem.
The latter point is important to note since it is not always easy to determine if less-intrusive means are available to maintain a safe and healthy workplace.
As similar guidance has not been issued to date by human right bodies in other jurisdictions in Canada, employers with operations outside of BC may consider BC’s Guidance for direction if they are considering the development of vaccine status policies.