On July 13, 2021, the BC Human Rights Commissioner (the "Commissioner"), published a guidance statement (the "Guidance") that provides information for employers in British Columbia on requiring proof of vaccination during the COVID-19 pandemic and the intersection with human rights.
With the rise in vaccination rates and the relaxation of health restrictions in BC, many employers are turning their minds to developing policies that may treat people differently depending on whether or not they have been vaccinated. For example, some employers may be considering requiring proof of vaccination as a condition of access to the workplace.
The Guidance provides timely advice to employers, landlords, and service providers (collectively called duty bearers) who are interested in developing vaccination status policies that are consistent with their obligations under BC's Human Rights Code.
According to the Commissioner, relevant protected grounds that may be engaged by vaccination policies include physical or mental disability, place of origin, religion, and family status. For example, an employee's protected ground of family status may arise if they are discriminated against because their children are too young to be vaccinated.
It should be noted that the Guidance, while a useful insight into how vaccination policies may be viewed in the human rights context, does not have legal effect. The BC Human Rights Tribunal and the courts are ultimately responsible for determining how and whether human rights legislation and protections are engaged with respect to such policies.
The Guidance has two key takeaways for employers, landlords and service providers considering implementing a vaccination policy.
First, these duty bearers can, in some circumstances, implement a vaccination status policy such as a proof-of-vaccination requirement. However, such a policy is appropriate only where other less intrusive means of preventing COVID-19 transmission are inadequate for the setting. Due consideration must be given to the human rights of everyone involved.
Second, the Human Rights Code does not protect people who choose not to get vaccinated as a matter of personal preference. Such people do not have grounds for a human rights complaint against a duty bearer implementing a vaccination status policy. The Commissioner states that this is especially the case where that choice is based on misinformation or misunderstanding of scientific information.
Principles to consider in determining whether vaccination policies can be justified
The Commissioner emphasizes the following principles for duty bearers that are considering vaccination policies:
- Time limited: Policies should be in place for the shortest amount of time possible and regularly reviewed.
- Evidence-based: Policies should reflect up-to-date public health recommendations and be responsive to the specific risks they aim to address.
- Proportional: As vaccination rates increase and health and safety risks decrease, duty bearers should relax their vaccination-based restrictions.
- Necessary: Policies should be used only where they can achieve an outcome that other, less intrusive measures cannot. The Commissioner emphasizes that this is particularly the case for proof-of-vaccination requirements. Further, in implementing vaccination status policies, employers must also take into account their duty to accommodate.
- Privacy: The collection, use, or disclosure of personal health information, including vaccination statuses, must follow applicable privacy laws.
The Commissioner also states that employers should consider issues of equitable access; where an employee is unvaccinated due to an access issue — for example, employees facing language barriers, employees with disabilities, and precarious workers with multiple jobs and caregiving responsibilities — the employer should do all they can to help that employee get vaccinated.
Accommodation and vaccination status policies
The Commissioner also emphasized that duty bearers, in particular employers, should accommodate the needs of their employees and the public to the greatest extent possible. Accommodations should be based on the individual needs of the people involved, and a blanket solution may not discharge the duty bearer's duty to accommodate. The Commissioner provides the following example of accommodation for employees:
[E]mployers may exempt an employee from the vaccination status policy, create a requirement for staff to wear a face mask, work at a physical distance from others, work a modified shift, get periodic tests for COVID-19, work remotely or accept a reassignment to a setting that poses less risk of transmission.
The Commissioner previously emphasized in a statement about mandatory mask policies that, where a relationship is brief, such as a customer accessing a service, the duty bearer may not be entitled to significant amounts of information about the customer's reasons for requesting accommodation. The same is likely applicable for vaccination policies. In the employment context, however, since the relationship is longer, employers are generally entitled to more detailed information so the employer can provide accommodation, if necessary, to the employee. Collecting, using, and disclosing such information will engage applicable privacy obligations under the applicable legislation.
The Guidance is the first published advice from a provincial human rights body on vaccination status policies and requiring proof of vaccination during the pandemic. It raises important human rights considerations for duty bearers who are considering or implementing vaccination status policies. Given the evolving medical and epidemiological understanding of the specific risks such policies aim to address — and given the potential human rights grounds they intersect with — duty bearers need to be prepared to take a balanced and flexible approach to their formulation and implementation.
However, as the Guidance does not have legal effect, it remains to be seen how it will influence the Human Rights Tribunal and our courts in deciding discrimination claims relating to vaccination status policies.
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