British Columbia’s government stuck its big toe in the water with its recent “vaccine passport” announcement. I use that metaphor because I believe they are waiting to see what the public reaction will be to the announcement and, if there is no mass uprising and COVID case numbers remain high, they will be moving quickly to expand its scope.
B.C.’s “Vaccine Passport” Announcement
From most employers’ perspective, the announcement is a good thing because it means the government is offering employers some support and legal cover for imposing mandatory vaccination policies. The B.C. government’s release stated, in part…
Starting Sept. 13, 2021, proof of vaccination will be required in B.C. for people attending certain social and recreational settings and events. … A new order from the provincial health officer will require individuals to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. As of Sept. 13, one dose of vaccine will be required for entry to these settings. By Oct. 24, entry to these settings will require people to be fully vaccinated at least seven days after receiving both doses. To enter certain spaces, including indoor ticketed sporting events, indoor and patio dining in restaurants, fitness centres, casinos and indoor organized events, like conferences and weddings, people aged 12 and older will be required to show their proof of vaccination.
The government’s list of “settings” where proof of vaccination will be required includes the following.
▪ indoor ticketed sporting events
▪ indoor concerts
▪ indoor theatre/dance/symphony events
▪ restaurants (indoor and patio dining)
▪ night clubs
▪ casinos
▪ movie theatres
▪ fitness centres/gyms (excluding youth recreational sport)
▪ businesses offering indoor high-intensity group exercise activities
▪ organized indoor events (eg. weddings, parties, conferences, meetings, workshops)
▪ discretionary organized indoor group recreational classes and activities
Regarding the effective dates, the government stated that “Individual businesses or event organizers may also implement these requirements earlier as part of their ongoing safety plans.” The announcement did, however, include the caveat, “Businesses or institutions choosing to adopt their own vaccination policies beyond those set out in this order will be responsible for doing their own due diligence.”
What Does This Mean?
So, what does all this mean for employers and employees? It is worth noting that the government’s vaccine passport announcement doesn’t specifically identify employees as being covered by the new rules. However, it does refer to “people” attending at the settings listed above, so I think we have to presume that includes employees. (Employees are people, too!)
My own view is that, if your business matches one or more of the settings listed above, you now have not only the legal entitlement but may have the obligation to impose a mandatory vaccination policy for employees who will be in attendance. And, if your business is unable to effectively isolate other employees (who won’t be directly in attendance), the mandatory vaccination policy should probably apply to them as well.
If your business does not match any of the settings listed above, the status quo remains in effect; imposing a mandatory vaccination policy is a risky endeavour and, effectively, you do so at your own risk.
Mandatory Vaccination Policies - Messaging
My main concern in this situation will be to ensure that my clients are delivering a consistent and comprehensible message to their employees about who will or will not be required to show proof of vaccination.
State, plainly, who will be required to demonstrate they have been vaccinated. Be clear about where (in what settings) employees are required to be fully vaccinated. Highlight the date when you will expect them to demonstrate that they are vaccinated. Set out, clearly and simply, how they will be able to demonstrate their vaccination status. State what will occur if they are not in compliance in a timely fashion. Explain to them that, in certain instances, accommodations will be made (but don’t try to capture all the possible permutations and combinations in the policy as that will just cause confusion).
I suggest that my clients should take a broad view of the list of “settings” contained in the PHO’s vaccine passport announcement. If you feel that more than one of the listed “settings” might apply to your organization, cite that in your external messaging.
What If Employees Won’t Cooperate?
If an affected employee simply refuses (due to personal preference or generalized concerns such as “anxiety”), employers need to be prepared with a response. If that employee cannot be moved into duties which would preclude exposure or if the employee cannot work remotely, it seems the only option will be to place the employee on an unpaid leave of absence for the time being.
Depending on how the current wave of the pandemic plays out, and depending on future orders from the PHO, that leave could be short-lived or it could be quite lengthy.
Ongoing Risk of Claims?
Definitely, notwithstanding the vaccine passport announcement, the risk remains of claims for wrongful dismissal, discrimination, etc. if employees are prevented from working as a result of refusing to obtain the COVID vaccination.
There is no way to prevent an aggrieved person from filing a civil or statutory legal claim. Until those claims begin to be decided – 12 months or so from now – we won’t know exactly how they will be adjudicated.
Exceptions? Accommodation?
It is worth noting that refusing an exemption for an employee who simply prefers not to become vaccinated is not discrimination, and that generalized (ie. non-specific) claims of health issues (ie. “anxiety”) preventing a person from adhering to the PHO’s orders is not sufficient. B.C.’s Human Rights Tribunal has already addressed these situations.
Employers will have to be prepared to deal with employees who raise legitimate grounds on which to refuse the vaccination (medical disabilities, religious affiliations, etc.). Those instances will have to be dealt with on a case-by-case basis and proper accommodations will have to be provided (when possible).
Enforcement
Enforcement of the vaccine passport requirement is going to be a challenge for many organizations. If people – including employees - see that the rule is not being enforced, they will take advantage. Whatever mandatory vaccination policy you put in place, be prepared to back it up with action.
Keep in mind that there will be (at least) two aspects to enforcement of the vaccine passport requirement. Human resources staff will be policing the extent to which other employees have complied with the employer’s mandatory vaccination policy. And some other employees will be tasked with controlling access by customers, members, etc. to events in the settings listed above. In both instances, it’s likely to be a challenging job.
Ask yourselves… who are employees who are going to be tasked with enforcing the rule? What are they going to do if someone resists the rule and becomes irate? Are the responsible employees trained to deal with that situation? Will they have back-up in case an irate person becomes abusive or gets physical? These are, unfortunately, situations which have to be planned for in this strange, unfortunate time.
I’ve said, many times over the years, that “regular” employees aren’t security guards; unless they have been trained and equipped to deal with the situation of an irate person refusing to comply, they probably shouldn’t be put in that situation.
Remember, employers’ WorkSafeBC obligations compel them to ensure the health and safety of all employees, including those who will have the task of enforcing the vaccine passport requirement. The Workers Compensation Act compels employers to protect their employees from workplace harassment and bullying.
The next few weeks will surely test employers’ ability to live up to that obligation.
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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.