Vaccine Mandates and Workplace Vaccination Policies

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

Last Update: September 11, 2021

 

Private BC Businesses and Workplace Vaccination Policies

Given the rapid progression of the Delta variant and the precedents coming from some U.S. and Canadian companies, and more recently the B.C. Government’s announcement on the proof of vaccination order, more and more private businesses have also been considering workplace vaccination policies, either mandatory or voluntary. When asked whether employees at private businesses could soon face requirements to be fully vaccinated as a condition of employment, Dr. Bonnie Henry said on August 12, 2021:

That is fair game. These are business decisions that they (the individual workplaces) need to make in conjunction with their own labour lawyer advisors but I do think it is a perfectly valid thing.

The latest B.C. Government announcement on the Proof of Vaccination Order has further solidified the idea of vaccination requirements being possible.

Our Employment & Labour Group first wrote a detailed article on this topic back in January 2021, when vaccinations were just starting to roll out – the article provides more details on rights and obligations and is available here.

Our Labour Lawyer Chris Drinovz was recently asked to provide his commentary on CBC News regarding Vaccine Mandates in Workplaces and hurdles business owner employers might face if implementing a vaccination policy at their individual workplace. Video from CBC News Vancouver aired on August 13, 2021:

Below we included a summary of Chris Drinovz’ comments from CBC News written article available in full here:

Drinovz says that the threat of variants and the fact that vaccines curb virus transmission could be enough proof for some employers to require vaccines. Without provincial legislation, however, each employer’s decision will have to be on a case-by-case basis.

 

Human rights are an obvious concern when it comes to vaccine mandates, according to Drinovz. This is especially so, given that it is entirely legal for non-unionized workplaces to fire employees for any reason whatsoever, including not being vaccinated. “Human rights legislation across Canada protects people from discrimination on the basis of certain protected characteristics,” Drinovz said. “One of those is a medical disability, another one is somebody’s legitimate religious beliefs.”

 

In the opinion of Drinovz, not being vaccinated does not constitute “just cause” for firing. That would mean if employees were fired for being unvaccinated and felt they were discriminated against, employers could be taken to tribunals and be told to pay severance or notice.

 

Without the backing of far-reaching federal legislation, Drinovz says employers should be prepared to implement work-from-home and other safety measures in the absence of vaccine mandates.

 

Issues that Need to be Considered by Employers and Employees

Nature of Workplace

While the encouragement to implement a workplace vaccination is there, employers should do their homework before implementing a policy at their workplace and discuss it with an employment/labour lawyer as recommended by Dr. Henry in her August 12 statement. The nature of each workplace varies and the requirement for a vaccine should be connected to a real threat of an outbreak within the workplace or the need to protect vulnerable people within the workplace.

Human Rights Accommodations

There are also individuals who may be protected against discrimination under the BC Human Rights Code (i.e. unable to get vaccinated due to medical reasons or sincere religious beliefs) who need to be accommodated by the employer.

Employees who experience discrimination and have a medical condition preventing them from receiving the Covid-19 vaccine may have a human rights claim against the employer.

Wrongful Termination and Severance Pay

In most cases where an employer terminates an employee for not complying with their mandatory vaccination policy, the employee is entitled to notice or severance pay based on their employment contract or common law in the absence of a valid written termination clause.

Privacy Considerations

Employers should keep in mind that even asking an employee whether they have had the vaccination and requesting proof of vaccination or a vaccination certificate is a collection of personal information/personal health information triggering privacy considerations. Information regarding an employee’s identity and vaccination status should not be shared with other employees.

Our Employment & Labour Group has been working with businesses to develop and draft the right policy for their workplace and are here to help! Get in touch today.

CLICK HERE to get a free copy of our webinar recording and presentation materials from our June webinar Your Guide to Rolling Out a Vaccination Policy with Chris Drinovz and senior lawyer Mike Weiler.

FAQs for Employers Regarding Vaccination Policies

1. Dr. Henry advised that religious belief is not a legitimate reason for not getting vaccinated. Is this accurate?

We are not aware of this specific statement. However, Dr. Henry did advise that there will be no exemptions to the B.C. mandate and passport at this time, during this period of increased risk.

As an employer, you do need to provide protection and accommodation to employees who are protected under the British Columbia Human Rights Code, such as for a medical or sincere religious belief.

Under human rights legislation, protection of a religious belief or practice is triggered when a person can show that they sincerely believe that the belief or practice (a) has a connection with religion; and (b) is “experientially religious in nature”: Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 69.

That being said, there have been no confirmed major religions to my knowledge that hold this belief. One driver for testing sincerity is the fact that no major organized religion objects to the vaccines, and Roman Catholic and other Christian, Jewish and Muslim leaders have advised followers to get the shots. Pope Francis went so far as to say that getting vaccinated was “the moral choice because it is about your life but also the lives of others.”

How can you know if your employee’s religious belief is sincere? For some of our clients who have implemented mandatory vaccination at the workplace, we created a Request for Accommodation Form. In order to qualify for the exemption, employees are required to fill out the form which includes providing a written and signed statement objecting to immunization due to sincere and genuine religious beliefs which prohibit immunization, in which case supporting documents may be required. It also mentions the employer can request further documentation such as a letter from an authorized representative of the church, temple, religious institution, etc. that you attend. Contact Chris Drinovz if you’d like to implement a Policy and request for accommodation forms.

Recent Relevant Case:

In the one BC Human Rights Tribunal case we summarised here, an employee objected to wearing a mask arguing it was against his religious beliefs to cover his face from God. https://www.ksw.bc.ca/employee-opinion-on-mask-wearing-not-protected/

At para 11, the Tribunal Member set out the reasons for his finding that the complaints set out cannot be a contravention of the Code:

These facts, if proven, could not establish that the Worker’s objection to wearing a mask is “experientially religious in nature”. He has not pointed to any facts that could support a finding that wearing a mask is objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”: Amselem at para. 43. Rather, his objection to wearing a mask is his opinion that doing so is “arbitrary” because it does not stop the transmission of COVID‐19.

(…)

The Worker’s opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion. While the Worker states his belief that it dishonours God to cover his face absent a basis for doing so, the Workers’ complaints, in essence, are about his disagreement with the reasons for the mask‐wearing requirement set out in the Orders.

2. Does shaming/demeaning unvaccinated workers constitute workplace harassment, and if yes what would the consequences be?

Yes, it certainly is, employers should prohibit any form of harassment, discipline, reprisal, intimidation, or retaliation based on an employee’s or contractor’s decision to get or not get vaccinated. Employees that discriminate against or bully a fellow employee or contractor because of their decision to vaccinate or not to vaccinate can be subject to discipline, up to and including termination for cause. A lot of employers have a Respectful Workplace Policy in place, which would may prohibit any form of harassment or discrimination at the workplace, including related to one’s vaccination status and outline a complaint procedure for dealing with this. For our clients who implemented a Vaccination Policy, we have included language on this specifically in the Policy.

3. Can someone be laid off for not following vaccination policy is that backed by law?

If an employee refuses to follow a workplace policy, an employer can discipline them according to the policy, including up to termination of employment. This is subject to the Human Rights Code, so it is important to obtain the reason why the employee is not following the policy and assess whether there is a duty to accommodate.

Lay offs are tricky – absent seasonal workers, the right to lay-off in a written contract, or the employee’s clear agreement, a temporary layoff (even for one day) can be treated by the employee as a constructive dismissal under the common law, triggering the employer’s notice or severance pay obligations either under the employment contract or the common law.

The British Columbia Employment Standards Act provides that after 13 weeks in any 20 week period, any temporary layoff would automatically become a termination under the Act unless the employer has applied for and received a variance from the Director. However, the Courts have held that this does NOT prevent employees from exercising their common law rights to claim a constructive dismissal if the layoff is less than 13 weeks. We covered this topic in an article available here.

Please note there are different rules for unionized employers which will depend on the language of the collective agreement. There may also be exceptions for non-union employers, particularly in the health care or federal sector if any of the Public Health Orders or federal government mandates require your employee to be vaccinated in order to perform their duties.

In any circumstances it is important to obtain professional advice before laying off an employee.  

4. Can we make “fully vaccinated” a prerequisite to the terms of employment, especially for new job offers?

Yes, you can. Just be mindful that you still cannot discriminate against individuals with traits protected by the British Columbia Human Rights Code, such as medical condition or sincere religious belief preventing the protected individual from getting the vaccine.

We have previously done a seminar on the “Art of Hiring” where we address human rights considerations when hiring new employees. If you would like access to these materials, please contact Chris Drinovz.

5. Are there examples of relevant cases dismissed by the BC Human Rights Tribunal?

Yes, the cases are below – some of them are not directly regarding vaccination, they address masks, however it’s the same principle of what is a protected ground under the Human Rights Code specifically religion or medical/disability arguments:

Political Belief Argument against new Proof of Vaccine Status requirement

Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120

The Complainant filed this complaint on August 24, 2021 on behalf of “people who are opposed to being forced into getting the COVID‐19 Vaccination and getting our basic human rights and freedoms stripped from us.” The Complainant has filed her complaint on the basis of the protected characteristic of political belief in the area of employment. The Tribunal Chair dismissed the complaint and said that while she accepts a belief opposing government rules regarding vaccination could be a political belief, it only protects a person from adverse impacts in their workplace and does not exempt them from obeying provincial health orders. She said the complainant alleges no facts that her employment has been affected. “The Code does not permit a direct challenge to a public health order based merely on disagreement with it.”

Medical Condition Argument against new Proof of Vaccine Status requirement

Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119

Decision issued on September 9, 2021 where the Complainant filed a complaint against Dr. Bonnie Henry, Provincial Health Officer for British Columbia, alleging discrimination in the area of services on the basis of physical disability under s. 8 of the Human Rights Code. The Complainant said that the proof of vaccination requirements are discriminatory. The Tribunal determined that it will not proceed with the complaint because it does not set out facts that could violate the Code. The complainant said he has asthma and does not want services curtailed because of an “experimental vaccine.” While asthma counts as a physical disability, protected under the B.C. Human Rights Code, the complainant has not yet experienced an actual adverse impact. The Tribunal added that even if the complainant was denied a service because he is not vaccinated against COVID-19, he still has to establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from getting the shot. “An ideological opposition to or distrust of the vaccine would not be enough.”

Religious Objections to Mask Use

In The Worker v. The District Managers, 2021 BCHRT 41, the Tribunal found that an objection to wearing a mask that is based on what was ultimately found to be personal preference and opinion is not protected by the Code. We summarized the decision in an article here.

Medical Exemptions for Retail Customers

In The Customer v. The Store, 2021 BCHRT 39, the Tribunal found that without establishing a disability protected by the BC Human Rights Code (the “Code”) the complainant could not seek redress from the Tribunal for being refused service without a mask.

Rael v Cartwright Jewelers and another, 2021 BCHRT 106

The complainant, a woman with an alleged breathing issue, was denied entry to the respondent’s store when she declined to wear a mask.

Christiansen v MedRay Imaging, 2021 BCHRT 107

The complainant, a man with a broken foot, walked into a clinic to obtain an x-ray in July 2020. Upon arrival, the un-masked complainant was asked to wear a mask in accordance with the clinic’s policy, was informed that a mask could be obtained at the neighbouring pharmacy, and was further advised that he would not be served without one.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at cdd@ksw.bc.ca.

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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