Both B.C. and Ottawa unveiled plans this month to ensure workers in health care, and federally regulated industries such as air transportation and banking among other sectors, will be vaccinated against COVID-19 by this fall.
Could private businesses be the next to introduce such mandates as a condition of employment?
Most of Canada’s businesses are on board with such efforts, according to a mid-August survey from professional services firm KPMG LLP.
Amid a surge in COVID-19 cases brought on by the Delta variant, 62% of the country’s small- and medium-sized businesses say they plan to make vaccinations mandatory.
The survey results, which also reveal 84% of employers support vaccine certificates to perform certain jobs or enter certain places, were unveiled just before the province introduced its B.C. Vaccine Card, which goes into effect September 13.
With all the potential challenges facing businesses trying to implement such policies, BIV spoke with lawyer Norm Keith, a partner specializing in employment and labour at KPMG Law LLP, to discuss how to navigate potentially stormy waters ahead.
The following interview has been edited and condensed.
Overall, it seems as if the majority are in favour of [vaccine mandates]. And B.C. provincial health officer Dr. Bonnie Henry said recently that private businesses should consult with their legal teams about mandating vaccinations as a condition of employment. Is that practical for a lot of these small and medium-sized businesses to implement?
Keith: I think it’s quite practical. And I think it’s in the practical and pragmatic interests of small and medium-sized business that’s driving this type of response … in the poll. In other words, businesses are frightened and worried about their survival. They’re concerned about another lockdown. And they want to find a way through and then out of the pandemic. And the best information, the best scientific and medical data we’re getting is that it’s through a highly vaccinated workforce.
Should some private businesses be concerned that they could be opening themselves up to lawsuits, or, with regards to what we’re hearing from different levels of government, they should feel as if they have the all clear to do this? And if an employee is not going to comply, would they have that recourse to terminate them?
Keith: Health and safety law, including in B.C., mandates very high legal responsibilities not only on employers but also on workers under the internal responsibility system. The health and safety legislation requires workers to engage in work in a manner that’s safe. And typically we think of following safety procedures, but it also includes not coming to work and transmitting COVID-19. So there’s a shared responsibility under health and safety law.
And although employers are primarily the target of enforcement, workers have responsibilities, too. So to achieve that in most congregate workplaces where workers interact with each other and perhaps customers, patients or the public, there is a strong legal basis and argument to say mandatory proof of vaccination is the best way to deal with the hazard or potential hazard of COVID in the workplace.
There are clearly human rights exemptions for this type of a mandatory policy to some extent, so primarily, we’re thinking about disabilities. Or in some narrow cases, perhaps even a sincerely held religious belief for getting a vaccination.
So if those conditions or exemptions exist, the employer has got to have a policy, in our opinion, to recognize them and then commit to doing their very best through collaboration with those workers in that situation of an exemption to find accommodation. The accommodation is not to create a new job or to necessarily create remote work if it’s not possible. But those are options for accommodation.
B.C. is one of the three provinces … that have privacy laws. But it doesn’t specifically deal with vaccination information or data. But the best practice, in our view, is to obtain consent to collect vaccine data, to commit to securing it, making it only available for the employer for safety-related and planning-related issues. And then also committed to destroying that data when it’s no longer relevant.
[Henry] consulted with the privacy commissioner, and he told her that it was a reasonable response to the ongoing situation. Is that one of the key things?
Keith: Obviously, long-term care homes in British Columbia and across Canada were the worst and hardest-hit places, especially in Wave 1 of COVID.
And so that’s the most vulnerable type of workplace where it’s not just workers, but it’s vulnerable patients. So B.C., like Ontario, like many jurisdictions across Canada, has been quite assertive in saying to maintain a licence to be a long-term care provider, you have to have a mandatory proof of vaccination policy for all your staff.
And with some limited exemptions – human rights exemptions we’ve already discussed – unless there’s proof of the exemption, you’re going to have to have a choice: You’re going to either get vaccinated to respect your co-workers, and your patients and residents or you’re going to have an exemption, and we’ll do what we can to accommodate you, or you’re going to have to rethink your career.
What if there was a reasonable alternative that could be offered? What if the employee said, ‘Well, instead of getting vaccinated … what if I wore a mask throughout the entire time that I was in the office? Or what if I ensured that there’s social distancing?’ But if an employer puts this mandate into effect, would the employee be able to offer those alternatives as opposed to getting vaccinated?
Keith: There’s really no duty, certainly under human rights law, for an employer to accommodate a worker. In other words, [to] give them an exemption from a mandatory COVID vaccination policy unless they had a human-rights-prohibited grounds of discrimination that they could attach that claim to.
So unless there’s a medical reason, or perhaps a sincerely held religious belief, then there really isn’t an obligation on the employer to respect that. That’s the law.
Practically speaking, employers may want to be thinking about keeping their workplace motivated and keeping a positive culture and giving some flexibility, even though they want the mandatory proof of vaccination policy to be their standard or their default.
So I think consulting with employees, using the joint health and safety committee as a place to do that, when they roll out their policy is a very, very sensible approach. Also, how do you keep key employees who, perhaps without medical reasons or other exemption reasons, just don’t want to be vaccinated? Now, we know the vast majority of Canadians already have been double-vaccinated and are pretty socially responsible concerning … themselves or co-workers and family members. But we get into the debate of individual rights versus group responsibility and that not only is a legal issue that might come up in cases, but also a social and philosophical and – although I’m not going to go there – a political issue.
Do you anticipate any sort of pushback with regards to the prospect of vaccination passports here in Canada?
Keith: The poll indicated that 84% of small- and medium-sized business owners across Canada support a vaccine pass certificate or, if you prefer, a passport, that’s either to perform their work or to enter into and enjoy services, be it a sporting event, a concert, etc. That’s a really high number, in our view. It’s the kind of indication that this is a reasonably acceptable and popular idea.
There’s, I think, a growing comfort – maybe even a growing consensus in many types of workplaces – that this is the best option to get through and to get beyond the pandemic, because there’s that growing social momentum as indicated by the KPMG survey. I think it’s going to be maybe unnecessary for provinces to mandate it by law … but it’s going to become the best practice, the most frequently and comfortable way that we’re going to allow businesses and entertainment/sports venues to open up.
The other thing is this: There will be – and maybe appropriately – challenges from time to time to an employer’s mandatory proof of vaccine policy. That’s not necessarily a bad thing, because there’s going to be outliers, or unusual fact situations and unusual cases.
So I think employers, even if they want to move forward with this type of policy – the KPMG survey said 62% will – it should not be anticipated to be an easy cure-all or panacea. But it is a good step towards protecting workers, being respectful of workers for the exemptions and to focus everyone really on the main goal, which is to keep people and workers safe, and to allow business to, if not return to normal, then do something close to that.
