Proof of Vaccination

You can’t turn on the news these days without hearing about vaccination mandates. The landscape is changing daily with companies and governments in Canada and the US issuing vaccine mandates. On August 12 BC announced that all long term care and assisted living workers, including volunteers and personal service workers who enter these facilities, were required to be vaccinated by October 12. On August 13, 2021 the government of Canada announced that it would be making vaccinations mandatory for all federal employees, as well as employees in the federally regulated air, rail and marine transportation sectors as well as their passengers. The government indicated that it expected Crown corporations and other federally regulated employers to follow suit, signaling that the desire to have companies implement vaccine mandates. Companies including the five big banks in Canada have instituted vaccine mandates. On August 19 the City of Toronto announced that all of its employees were required to be fully vaccinated by October 30. And today the British Columbia government announced that it will be the second province to require proof of vaccination to access some events, services and businesses. The announcement followed the order of the Public Health officer and begins September 13. By that date people will be required to prove that they have had at least one does of a COVID-19 vaccine. By October 24, participation will require proof that you have been fully vaccinated. The requirements apply to anyone born in 2009 or earlier. The requirement for proof of vaccination will be required for:

• Indoor ticketed concerts, theatre, dance, symphony and sporting events
• Indoor and outdoor dining at restaurants, pubs and bars
• Nightclubs and casinos
• Movie theatres
• Gyms, pools and recreational facilities
• Indoor high intensity group exercise
• Indoor organized gatherings like weddings, parties, conferences, meetings and workshops
• Indoor organized group recreational classes and activities
• Post-secondary on campus student housing.

The order does not apply to the retail sector.

Proof of vaccination will be shown through BC’s new vaccine card which will be available for September 13. Questions remain with respect to what mandate will be applied to schools and post-secondary schools beyond student housing, and what measures for enforcement will be taken or who will be responsible for enforcement.

Individual businesses may also implement these requirements earlier as part of their ongoing safety plans. A survey by KPMG found that 62% of Canadian small and medium size businesses are making or plan to make COVID vaccinations mandatory for their employees. This intent is likely driven in part by their obligation to keep workers safe and in part by their desire to lessen the chance of a shut down due to an outbreak. That survey seems to mirror what is being seen in BC. The new Public Health Order follows the request of several of BC’s largest industry groups to implement a proof of vaccination requirement. The request related in large part to the risks faced by businesses if they are forced to close in the future if there is an outbreak or further public health restrictions are reinstated. The industry groups emphasized that businesses and their employees need more support. The focus was on situations that attract large groups with prolonged exposure where physical distancing is difficult to maintain, to help mitigate transmission, rebuild consumer confidence and drive economic recovery.

Employers also are required to accommodate exemptions based on disability and religious beliefs, which leads to one of the main considerations in deciding whether to implement a mandatory vaccine policy. Are there any potential human rights implications. In July the BC Human Rights Commissioner issued new guidance to clarify the human rights considerations needed when developing rules about vaccination status. The Commissioner stated that in some circumstances a vaccination status policy can be implemented, but only if other less intrusive means of preventing COVID-19 transmission are inadequate for the setting and if due consideration is given to the human rights of everyone involved. Prior to implementing any mandatory policy the employer should assess whether alternative measures such as rapid testing, social distancing and minimizing time working in close proximity to others can provide the protection needed. While terminating an employee who refuses to adhere to the vaccine mandate because of a medical condition or religious belief would be considered discriminatory under the human rights code, terminating someone who refuses to be vaccinated for reasons not protected by the Code would not be discriminatory.

For businesses considering implementing their own mandatory vaccination policies in light of these directives, public health orders and recommendations, they should consider following the guidelines established by government and public health authorities. Those guidelines including accounting for employees who may have medical or religious reasons for not getting the vaccine and making it clear in their policies how they will preserve the confidentiality of employees’ personal medical information. BC’s new public health order should provide many businesses with the confidence to proceed with a mandatory vaccination policy in the workplace if it is felt to be necessary to provide a safe work environment for employees.

This update was authored by Harper Grey lawyer, Rose Keith, QC. Have questions regarding the topic discussed? Contact Rose at r[email protected] or anyone else listed on the authors page.