Over the past few months, many employers have been wondering whether they can enact mandatory vaccination requirements for employees and require proof of vaccination. This has been coupled with much commentary and discussion around the globe and the country about so-called “vaccine passports”. There has been a difference of opinion on the subject and it engages human rights issues, privacy issues, and workplace safety.
The British Columbia Human Rights Commissioner (the “Commissioner”) has recently issued policy guidance in its document “A human rights approach to proof of vaccination during the COVID-19 pandemic”. The document can be found here.
The Commissioner states that individuals must be protected from discrimination based on protected grounds and that human rights principles must continue to inform the response to the pandemic. The Commissioner advises that vaccination policies should be:
- Justified by scientific evidence relevant to the specific context;
- Time-limited and regularly reviewed;
- Proportional to the risks they seek to address;
- Necessary due to a lack of less-intrusive alternatives; and
- Respectful of privacy to the extent required by law.
The Commissioner reinforces that employers must accommodate those who cannot receive a vaccine up to the point of undue hardship. The Commissioner also recognizes the significant privacy issues that are engaged with requesting such sensitive personal health information.
To that effect, a joint statement was made earlier in May from the Federal, Provincial and Territorial Privacy Commissioners. That document can be found here. That guidance mirrors that from the Commissioner and emphasizes necessity, effectiveness, and proportionality as key considerations for vaccination policies.
Ultimately, all of these guidelines indicate that there are many considerations that must be put into any vaccination policy and that such policies may not be appropriate at all in certain environments. Employers will want to seek legal advice before implementing any policies to ensure any potential liabilities are understood and addressed.
For questions and guidance on vaccines and COVID-19 in the workplace, please contact Clark Wilson LLP’s Employment & Labour Group.
