The B.C. Human Rights Commissioner Weighs in on Mandatory COVID-19 Vaccination Policies

roper greyall | Article by: Sarah Blanco Christopher Munroe | August 2021

As vaccination rates increase, and the province continues to progress through each phase of its reopening plan, one of the biggest questions facing employers is whether to implement a mandatory vaccination policy for employees and, in some cases, customers. This is a complex and highly context-specific question that engages human rights issues, privacy issues, and workplace safety considerations.

On July 13, 2021 the B.C. Human Rights Commissioner weighed in on this issue and provided employers with valuable guidance regarding the human rights issues that must be considered when developing COVID-19 vaccination policies.

First, who is the B.C. Human Rights Commissioner and why do we care what they say?

Kasari Govender took office as British Columbia’s Human Rights Commissioner on September 3, 2019. She is an independent officer of the B.C. legislature, and is responsible for promoting and protecting human rights in British Columbia through education, research, advocacy, inquiry and monitoring.

The B.C. Human Rights Commissioner does not offer legal advice or provide representation, nor does she accept or adjudicate individual human rights complaints. Complaints are adjudicated by the BC Human Rights Tribunal (a separate body).

Policy statements from the B.C. Human Rights Commissioner do not hold the same force and effect as laws and they do not mandate the approach that employers have to take, but they provide important and valuable insight into the approach that the Human Rights Tribunal is expected to take regarding emerging human rights issues.

Okay, so what is the verdict on implementing mandatory vaccination policies?

Like so many issues in the legal field that require a complex balancing of interests, the answer is: it depends.

B.C.’s Human Rights Commissioner has indicated that employers can in “limited circumstances” implement a mandatory vaccination policy 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.

Vaccination status policies must therefore meet the following criteria:

  1. Supported by scientific evidence relevant to the specific context: evidence of the risk of transmission in the specific setting is required. The policy must also align with current public health recommendations and medical evidence.
  2. Time-limited and regularly reviewed: vaccination policies should be used for the shortest possible amount of time, and should be regularly reviewed and updated to reflect the current COVID-19 pandemic and public health recommendations.
  3. Proportional to the risks they seek to address: as COVID-19 health risks decrease due to increased vaccination rates, vaccination policies should become less stringent.
  4. Necessary due to a lack of less-intrusive alternatives: vaccination policies should be a last resort, relied on only if other methods—such as social distancing, implementing work from home policies, and wearing masks—are ineffective.
  5. Respectful of privacy to the extent required by law: an individual’s vaccination status is sensitive personal health information. Any collection, use or disclosure of such information must be authorized by applicable privacy laws. Appropriate safeguards must be in place to ensure the information is stored securely and only held for as long as needed.

Based on the above criteria, the presence of the following factors would typically support the necessity of a COVID-19 vaccination policy for employees:

  1. The employees work directly with individuals who are particularly vulnerable to the effects of COVID-19, such as the elderly;
  2. The nature of the job or service requires the employee to be in close proximity to other employees or customers;
  3. There is evidence that the workplace has had COVID-19 outbreaks in the past, despite adopting best practices for reducing COVID-19 transmission;
  4. Further medical evidence emerges that indicates COVID-19 vaccines are highly effective at preventing transmission to other individuals; and
  5. COVID-19 transmission rates throughout the province remain significant.

We note that this list is for illustration only, and is not intended to be comprehensive.

If a vaccination status policy is necessary to address specific safety concerns in a particular setting, it should include alternative options to being vaccinated, particularly for those individuals who cannot be vaccinated due to medical or religious reasons (which may be protected by human rights legislation). For example, unvaccinated employees or customers could be required to wear a face mark or to remain physically distanced from others. Unvaccinated employees could work modified shifts, work remotely, or undergo periodic testing for COVID-19.

I would like to explore implementing a COVID-19 vaccination policy at my workplace, what is the first step?

We strongly recommend that employers who are considering implementing a COVID-19 vaccination policy seek legal advice. This is a complex issue that requires a highly context-specific analysis. While this article provides a high-level overview of some of the human rights issues that are engaged, it is not exhaustive, and it does not address the myriad of other privacy and workplace safety issues that need to be considered. The lawyers at Roper Greyell can help you tackle your COVID-19 safety concerns in a way that is best suited to your workplace, and balances risk with your operational needs. For more information, contact Sarah Blanco and Christopher Munroe, the authors of this article.

What are other people saying about COVID-19 vaccine passports in Canada?

On May 19, Canada’s provincial, federal and territorial privacy commissioners issued joint statement outlining the privacy principles, laws and best practices that should be followed when developing “vaccine passports” to ensure protection of sensitive personal health information.

On May 26, the Office of the Ombudsperson cautioned against COVID-19 vaccination passports being used to unfairly limit provincial and local public services and endorsed new national guidance from the Canadian Council of Parliamentary Ombudsman, “Fairness principles for public service providers regarding the use of COVID-19 vaccine certification.”

During a press conference on July 27, 2021, B.C.’s provincial health officer Dr. Bonnie Henry was asked if businesses should be requiring vaccinations. In response, Dr. Henry said she “absolutely” supports private business requiring vaccinations. She said that if she owned a business, she would require people to be vaccinated to come in to her business. Minister of Health Adrian Dix seemed less in favour, and pointed to efforts to drive up the vaccination rates. Dr. Henry repeated her comment during a press conference on August 3, stating that private operators could refuse entry to unvaccinated people.  On August 5, 2021, Dr. Henry suggested that the government was looking at some form of “vaccine passport” for non-essential services.

While these comments do not carry the force of law, they indicate strong public support for businesses requiring proof of vaccination and it is increasingly likely that the government may implement some form of document that businesses can rely on in that regard.  If implemented, we expect that previously reluctant employees may ultimately obtain a vaccine in order to access businesses.

What guidance has the BC’s Office of the Human Rights Commissioner provided on other COVID-19 issues, like mask wearing?

The B.C. Human Rights Commissioner has also issued the following policies on the intersection of COVID-19 and human rights issues: