With workplaces returning to normalcy throughout Step 3 and into Step 4 of BC’s Restart Plan, many employers are contemplating vaccination policies, including requiring proof of vaccination. However, employers should consider the practical and legal ramifications of implementing such policies, for instance potential contraventions of the BC Human Rights Code (the “Code”).
To assist employers (and other entities with obligations under the Code such as retailers), the BC Human Rights Commissioner (the “Commissioner”) issued a policy guidance (the “Guidance”) clarifying the human rights considerations for developing rules and policies about vaccination status.
The Commissioner is responsible for, amongst other things, creating policies, guidelines, and recommendations to prevent discrimination and to promote compliance with the Code. The Human Rights Tribunal (the “Tribunal”), which adjudicates complaints under the Code, is not bound by the Commissioner’s policies and recommendations, but the Tribunal could find them persuasive or informative.
In the Guidance, the Commissioner opines that employers can implement a vaccination status policy in some circumstances, but only if other less intrusive means of preventing COVID-19 transmission are inadequate for the setting and if due consideration is given to the Code.
The Commissioner gives six guiding principles for developing a vaccination policy:
- Equitable access –employers should help individuals who are unvaccinated due to barriers to accessing vaccination e.g. mobility or language barriers.
- Evidence-based – policies must be aligned with current public health recommendations and medical and epidemiological research.
- Time-limited – policies should be used for the shortest possible length of time and be regularly reviewed and updated.
- Proportional – policies must be proportionate (i.e. balanced) to the health and safety risks that are being addressed.
- Necessary – policies should be used where less intrusive measures will or have not worked well enough to prevent transmission.
- Privacy – vaccination status is sensitive personal health information and any collection, use or disclosure must comply with applicable privacy laws.
Employers should consult a lawyer before implementing a vaccination policy to discuss potential legal issues and concerns.
If you have any questions about the above, or other employment-related issues arising from Step 3, we will be presenting a free webinar at noon PST on August 10, 2021 where we will be discussing vaccination policies, work from home arrangements, and other COVID-related topics. For more information, please contact Nikki Morrow at email@example.com.
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