It may be hard to know whether less intrusive means can ensure safe and healthy workplace: lawyer
Since the initial release of the B.C. Office of the Human Rights Commissioner’s guidance on proof of vaccination amid the COVID-19 pandemic, there has been an upward trend among B.C. employers implementing mandatory vaccination policies, a lawyer says.
In some cases, they put such policies in place because they have been required to, while in other cases they have chosen to do so, says Monty Verlint, a labour and employment law partner at Littler Mendelson P.C.
The guidance stresses the importance of striking a careful balance between the rights of those who have not been vaccinated due to a protected ground — such as place of origin, religion, physical or mental disability or family status — under B.C.’s Human Rights Code and the individual and collective rights to health and safety, Verlint says.
Verlint notes that the guidance clearly provides that individuals who cannot be vaccinated due to a Code-protected ground should be accommodated “to the point of undue hardship,” a point which is generally reached when accommodating such persons would cause health and safety risks for others or would be inordinately expensive.
Accommodations may include wearing a face covering, working remotely, working at a physical distance from others, working on a modified shift, periodically getting tested for COVID-19 and accepting a reassignment to a location posing less risk of transmission. Those who simply “choose” not to get vaccinated cannot challenge B.C. employers via human rights complaints, Verlint adds.
Verlint says that, from a privacy perspective, employers would benefit from collecting confidential vaccine status information in the least intrusive manner possible and only to the extent necessary to protect safety and to facilitate accommodations.
The guidance also cautions that this information should be securely stored and should be held only for as long as it is directly needed pursuant to the relevant privacy laws, Verlint says. “This is particularly important in British Columbia (as well as Alberta and Quebec) where privacy legislation exists for employees in provincially regulated companies,” he adds.
The guidance encourages a human rights-based response to the pandemic even as vaccinations rise and transmission rates drop. Kasari Govender, B.C.’s human rights commissioner, adopted a position that, although duty bearers can in certain circumstances impose a proof-of-vaccination requirement or similar vaccination status policies, they can only do so if other less intrusive means of preventing transmission are insufficient for the setting and if due consideration has been given to the human rights of all those involved.
The guidance recommended six principles for implementing a reasonable vaccination status policy, which are equitable access, basis in evidence, limitation as to time, proportionality to the health risk, necessary and minimally intrusive means, and respect for privacy rights.
The principle of minimally intrusive means is notable because it may be difficult to know whether less intrusive means are available for ensuring a safe and healthy workplace, wrote Verlint in a post alongside Rhonda Levy, knowledge management counsel at Littler.
The post urged employers to align their policies with updated public health recommendations and with the current medical and epidemiological understanding of COVID-19 risks, as well as to regularly review their policies to keep them up to date with the most recent COVID-19-related developments.
“As similar guidance has not been issued to date by human right bodies in other jurisdictions in Canada, employers with operations outside of BC may consider BC’s Guidance for direction if they are considering the development of vaccine status policies,” wrote Verlint and Levy.