Over the past few months, we have witnessed a number of provinces implement various procedures requiring individuals to provide proof of vaccination, as well as companies implementing mandatory vaccine policies. In British Columbia, by order of the Provincial Health Officer, proof of vaccination is required to access a number of non-essential events, services and businesses. At this time, an individual must have at least one dose of a COVID-19 vaccine and by October 24, an individual must be fully vaccinated to obtain their vaccine passport.
There is currently both strong support and vocal opposition to proof of vaccination requirements and mandatory vaccine policies. Many oppose the requirements on the basis that they infringe on an individual's Human Rights. On September 22, 2021, Ontario's Human Rights Commission issued a statement that more positively supports Ontario employers' ability to impose vaccination policies on their employees.
The key portion of the statement reads:
While receiving a COVID-19 vaccine remains voluntary, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code (Code) as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. This applies to all organizations.
Upholding individual human rights while trying to collectively protect the general public has been a challenge throughout the pandemic. Organizations must attempt to balance the rights of people who have not been vaccinated due to a Code-protected ground, such as disability, while ensuring individual and collective rights to health and safety.
This statement is only guidance; it does not have the legal force and effect of a court or tribunal decision, nor of legislation. It is also from Ontario, a separate legal jurisdiction from BC. However, it is noteworthy for BC employers because it could indicate which way the wind is blowing. Employers will recall that in July, the BC Human Rights Commission (as opposed to Ontario's) issued the following much more discouraging guidance to BC employers:
Ultimately, it is the position of B.C.'s Human Rights Commissioner, Kasari Govender, that duty bearers can in some circumstances implement a vaccination status policy such as a proof-of-vaccination requirement—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.
BC lawyers and employers can only speculate as to the enforceability of vaccine policies and proof of vaccination for private employers until some binding guidance is issued in BC, but Ontario's Human Rights Commissioner's decision to take a stronger approach cannot be viewed as a negative sign for employers considering implementing proof of vaccination or mandatory vaccination policies.
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