By Myrna El Fakhry Tuttle

The federal and provincial governments in Canada have decided not to mandate COVID-19 vaccines. This decision comes despite high rates of vaccine hesitancy and even though the majority of people need to be vaccinated to return to normal life.

The federal government has refused since the beginning of the pandemic to invoke Canada’s Emergencies Act, which gives it extensive powers. Also, provinces have refused to mandate vaccinations despite the fact that they have the power, under provincial laws, to do so at the advice of a government official or the provinces' Chief Medical Officers of Health.

For instance, under section 123 of Quebec’s Public Health Act, after declaring a public health emergency, the government has the power to “order compulsory vaccination of the entire population or any part of it against … any contagious disease seriously threatening the health of the population” without delay and without further formality. Likewise, under section 38 of  Alberta’s Public Health Act, the government has the power to order “the immunization or re-immunization of persons when there is a public health emergency or epidemic”.

However, and despite these provisions, Quebec, Alberta and most provinces have declined to make COVID-19 vaccines mandatory. It is important to note that if federal and provincial governments had decided to exercise their powers and mandate the vaccine, that would have been considered forced medical treatment. This decision could be challenged under section 7 of the Charter of Rights and Freedoms (the Charter).

Response from Employers and Businesses

Since COVID-19 vaccines are voluntary, proof of vaccination against the virus is a step that employers and private businesses can take into account. In fact, some private companies already plan – once the vaccine is extensively available – to request that customers provide proof of vaccination before providing any services.

Most businesses have suffered economically during the pandemic. They depend on a high percentage of the population being vaccinated to return to normal business. Therefore, these businesses have the right to determine their own policies, particularly because they have an obligation to keep their workers and customers safe.

Airlines, restaurants, bars, sports arenas, movie theatres, concert venues, etc. can set their own rules and refuse to serve, or exclude, unvaccinated individuals. Ryan Watkins, an employment lawyer, stated:

As an employer you have the right to refuse customers coming into your establishment ... It's a difficult choice for an employer and businesses to make, but I think the courts would back them up in the name of health and safety.

He added:

While there may be human rights issues that could come into play ... an employer is within their rights to say, 'for this time being, we're not going to allow you into the store because these are the rules.’

Qantas Airways is preparing in advance to request proof of vaccination against COVID-19 from international travelers. The airline's CEO Alan Joyce said the airline was looking at changing its terms and conditions to "ask people to have a vaccination before they get on the aircraft."

In Canada’s Atlantic provinces, where travel for non-residents has been limited, individuals may be allowed to enter, and probably avoid the quarantine period, if they have a vaccine certificate.

The International Air Transport Association (IATA) has stated that “a digital health pass, which could include vaccine information, is the key to opening borders.” For example, in August 2020, Transport Canada requested individuals provide proof of a medical exemption for face coverings before boarding a plane. They can do the same thing with vaccinations.

In addition to airlines, Ticketmaster in the United States is also looking into ways to permit event organizers to ask fans, before attending any events, to verify they are vaccinated or have tested negative for COVID-19 within a specific period of time.

Besides that, vaccine certificates may be required in places such as shopping malls, bars and restaurants. Francoise Baylis, a professor at Dalhousie University, asserted that “what we are having now is the discussion about using it for access to all kinds of things, whether it’s sporting venues, music venues, places of religious worship.”

Private colleges and universities will also have to rely on high vaccine coverage to have in-person classes. It is possible that these institutions may demand COVID-19 vaccination for students, faculty and staff before reopening. While the Charter might apply to universities in some situations, if the court determines the Charter applies, they could then be subject to a Charter challenge.

Issues for Employers and Businesses

Employers and businesses have an obligation to keep the work environment safe. Therefore, they can consider mandatory vaccinations. But by doing so, they must strike a balance between the customer or employee’s human rights and privacy interests, and safety measures imposed to reduce the risks of COVID-19. Employers and businesses will have to clarify why other measures – such as hand washing, personal protective equipment (PPE), wearing masks and physical distancing – are not enough.

As well, employers who require vaccinations may be liable if an employee reacts poorly to the vaccine. In addition, employees and customers who have a valid reason (for example, medical reason) not to receive the vaccine may claim discrimination and human rights violations if employers do not accommodate them.

Under Alberta Human Rights Act, enforcement of public health orders can be difficult. If an employee has a physical or mental disability as defined by the Act and cannot wear a mask, the employer has a duty to accommodate that person to a certain limit. That would also apply to proof of vaccination. Perhaps the employer could accommodate that employee by allowing them to work from home or by following COVID-19 public health measures.

While employers must find an appropriate accommodation, they must do so only to the point of “undue hardship.” According to the Alberta Human Rights Commission, undue hardship “occurs if accommodation would create onerous conditions for an employer such as intolerable financial costs or serious disruption to business.”

If an employee provides a sound request to wear a mask or work from home, an employer’s refusal to permit this as an accommodation can violate human rights law. The Alberta Human Rights Commission states:

Employers can consider flexible options for employees, such as working remotely where feasible, as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.

Also, employers and businesses cannot discriminate based on a person’s religion. They must make proper accommodations for people with disabilities. Between private companies having freedom to set their own policies and customers who cannot get vaccinated for different reasons, the situation can be very delicate. "Those rules are very hard to enforce because you can’t just give every shop owner the right to demand your medical file," said Simran Prihar, a human rights and labour lawyer.  

Employers and businesses that require proof of vaccination as a condition of service, may face many difficulties. Condition of service policies must comply with human rights law and must not discriminate based on religion, disability or creed. In Ataellahi v. Lambton County (EMS), 2011 HRTO 1758, the tribunal decided an employee’s objection to vaccinations did not amount to discrimination by the employer on the basis of his creed. In Ontario, creed is “a set of sincerely held religious beliefs or practices which need not be based on the edicts of an established church or particular denomination.” 

According to the Ontario Human Rights Commission:

·       Requiring proof of vaccination to ensure fitness to safely perform work, or protect people receiving services or living in congregate housing, may be permissible under the Code if the requirement is made in good faith and is reasonably necessary for reasons related to safety.

·       The Code grounds of disability and / or creed may be engaged when employers, housing or other service providers impose medical testing or treatment requirements, including proof of vaccination.

·       Under the Code, organizations have a duty to accommodate people who may be unable to receive a COVID-19 vaccine, for reasons related to disability or creed, unless it would amount to undue hardship based on cost or health and safety.

·       The right to be free from discrimination can be limited under the Code, where, for example, broader health and safety risks are serious, like in a pandemic, and would amount to undue hardship. The OHRC and relevant human rights laws like the Code recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks and treatment associated with COVID-19.

Ontario’s health minister has declared individuals will receive proof of COVID-19 vaccination, predicting that some businesses might require such documentation. In British Columbia, individuals who get the COVID-19 vaccine will receive proof of vaccination in the “form of a paper hard copy and access to a digital record.”

Moving Forward

Businesses and employers have a duty to protect their staff and customers. That is why most have imposed safety measures during the pandemic such as requiring face coverings, hand washing and social distancing for customers and employees. Therefore, it is expected that some employers and businesses will at some point require proof of vaccination as a condition of service.