COVID-19: Legality of Vaccination Policies

In light of rising vaccination rates and policies across North America, we wish to provide more information regarding the legality of mandating proof of vaccination requirements in employment settings. As this is not client-specific, this article is merely information and not legal advice. Before implementing any steps, we urge you to seek legal advice to confirm that those steps are appropriate at the current time and in light of your specific circumstances.

Further, we would like to emphasize that the information provided below is based on a rapidly evolving situation. Lawsuits have been launched across the US against public employers that are requiring their employees to get vaccinated, but they have not been resolved. In contrast, Canada is just beginning to roll out these policies at both a public and private level. Therefore, vaccination policies and subsequent lawsuits have not yet been tested for the most part. As a result, the information provided below is subject to social, legal, and political developments.

Mandating Vaccines in the Workplace – Overview

As many employers and employees prepare to return to the workplace, questions arise over vaccination policies. Many employers may want to implement a mandatory policy that requires individuals to show proof of vaccination in order to return to the office. Some public and large entities have begun to do so.  This is largely because all employers have obligations under Occupational Health & Safety legislation to keep their employees and those visiting their work sites as safe and healthy as is reasonably practicable. Adopting a mandatory policy comes with certain considerations, which will be addressed in this article.

An employer creating such a policy may need to provide justification. This is because they are essentially requiring an employee to get vaccinated to be at work, and this could be seen as an attempt to control employees’ lives outside of the workplace. Therefore, a vaccination policy should meet two requirements for it to be found legitimate:

1. Requiring proof of vaccination is necessary for the business and worker safety; and
2. The benefits of mandating vaccines outweigh individual rights to choose their vaccination status.

If an employer can create a safe workplace without requiring proof of vaccination, this sort of policy may become difficult to justify. Medical data that proves vaccines are more effective than other health measures (masks, physical distancing) will be an important factor, in addition to the size and nature of the workplace.  The final consideration will be how to enforce the policy (for instance, whether unvaccinated employees would have to wear a mask, work in isolation, or work from home, and whether they would have reduced pay).  Enforcement carries risk of constructive dismissal and must be carefully assessed to mitigate that risk.

There are also human rights considerations that should be assessed before implementing a vaccination policy. Certain individuals cannot get vaccinated due to a human rights-protected reasons, and it is important for employers to evaluate potential discriminatory effects on their employees before implementing a mandatory vaccination policy. This is further discussed below.

Further, requiring proof of vaccination comes with certain privacy concerns. An employee’s vaccination status is their personal information, and an employer collecting it should follow appropriate guidelines to ensure that this information is protected and only used for legitimate purposes. This is expanded on below.

The above are considerations that an employer should assess before implementing a mandatory vaccination policy.  Due to the wide range of concerns relating to proof of vaccination requirements, employers may choose to implement a vaccination policy that is optional. It is less likely to be met with issues by providing accommodations to employees if they choose not to get vaccinated. Alternatively, many employers have decided to encourage or reward vaccination (using a carrot, as opposed to a stick).

Methods of Collecting Personal Information

There are a wide range of methods to collect personal information. However, as a general trend, the more reliable it is, the more invasive it could be, and greater privacy concerns could emerge. The Saskatchewan Privacy Commissioner has stated that the least invasive approach to collect proof of vaccination may be to request to view one’s proof of vaccination or to request employees to self-disclose their vaccination status. These methods are less invasive, because they do not require a business to collect personal information. However, employees can theoretically lie or forge vaccination cards, so this remains a concern.

A more intrusive measure could include keeping a list of employees and personnel who have shown proof of vaccination or keeping a copy of their proof of vaccination. These options are more reliable but also more invasive in terms of collecting and storing personal information. Privacy concerns are more likely to emerge if employers choose to collect personal information through these means.

If an employer in Alberta were to use a folder, list, app, or some other means to collect proof of vaccination, challenges may arise under the Personal Information Protection Act (SA 2003, c P-6.5 [PIPA]). Under section 1, PIPA applies to any individual or entity that acts in a commercial capacity and deals with any personal information (i.e. any information about an identifiable individual). An organization ought to be able to use, collect and disclose personal information with the consent of the individual and for a reasonable purpose. That purpose should be conveyed to the individual. An employer should also disclose that a 3^rd party is being used to collect the information, if that is the case (PIPA, SA 2003, c P-6.5, ss 7, 11, 13, 13.1).

Consent to collect personal information may be given verbally or in writing. Alternatively, the organization may choose to provide notice that it will be disclosing personal information and give the individual a reasonable opportunity to decline. However, under sections 17 and 20, an organization may be able to disclose personal information without consent if it is necessary to respond to an emergency that threatens the life or health of an individual or the public (PIPA, SA 2003, c P-6.5, ss 7, 8(3), 17(i), 20(g)). This could be at play in a situation where Human Resources needs to disclose the information of employees to Alberta Health Services if someone in the workplace was positive for COVID-19.

Once personal information has been collected, it should be protected by the organization using reasonable security arrangements. Further, that information ought to be retained as long as reasonably necessary, and thereafter should be destroyed or rendered non-identifying (PIPA, SA 2003, c P-6.5, ss 34, 35).

Avenues of Risk Under the Alberta Human Rights Act

There are individuals with legitimate reasons not to vaccinate themselves, such as religious beliefs and medical conditions (ex: severe allergic reactions to vaccines). Religion, physical disability, and mental disability are protected grounds of discrimination under section 4 of the Alberta Human Rights Act (RSA 2000, c A-25.5 [AHRA]). Further, marginalized populations and minorities are less likely to get vaccinated. There can be many reasons for this, including lack of access to vaccination information and translated resources. There have also been reports of distrust of vaccines and vaccine promoters among some communities due to generations of systematic discrimination and barriers.  Race is a protected ground under section 4 of the AHRA, so a vaccination requirement that disproportionately affects such communities could feasibly trigger human rights concerns.

Booster shots are a realistic possibility in the coming year or two. This may pose a challenge in terms of what exact proof is needed to enter a workplace: one dose, two doses, or two doses plus a booster shot. It appears that the booster shots will be rolled out sequentially based largely on age, with certain individuals becoming eligible before others. Specifically, younger people will be at the back of the line. This could raise an efficiency concern if your employees are primarily younger in age. This may create other issues if older employees are permitted to come back to work before younger employees. Age is a protected ground of discrimination under section 4 of the, so potential challenges may emerge under the AHRA.

Conversely, some reasons for not wanting to get vaccinated (lack of trust in the science, personal preference) are less likely to be protected grounds under the AHRA.

High Threshold of Justification and Components of a Vaccination Policy

Section 11 of the AHRA may permit a violation of section 4 if it is reasonable and justifiable in the circumstance.  Restricting employees’ privacy and activities outside of work requires similar justifications. This analysis entails a high burden of proof, and a vaccination policy ought to be able to provide:

• Proof of a pressing and substantial objective (i.e. protect public health by limiting the spread of COVID-19);
• A rational connection between the limit and its objective (i.e. proof of vaccination is directly connected to preventing the spread of COVID-19);
• The limit is minimally impairing (i.e. proof of vaccination is the least invasive measure that can effectively be taken to prevent the spread of COVID-19); and
• Proportionality between the negative effects of the policy and its beneficial effects.

There is a potential issue at the minimally impairing stage, because less invasive measures (masks, physical distancing, and negative COVID-19 tests) could work just as well to limit the spread of COVID-19. Therefore, as mentioned previously, accommodations of human rights and other restrictions may have to be provided to justify a vaccination policy. These accommodations should be appropriate and within reason, and we encourage you to speak with legal counsel before proceeding with their implementation.

Further, if a business is implementing a vaccination policy, that policy should be carefully worded and clear to ensure that it is compliant with the privacy and human rights legislation. Specifically, the policy should define:

• The business’s purpose for collecting the information;
• Its authority to collect and use the information;
• How the information will be handled;
• If there will be any negative consequences for not showing proof of vaccination; and
• Whether and how accommodation will be offered.

Please reach out for legal advice before preparing such a policy.

Current Lawsuits Surrounding Proof of Vaccination

Current lawsuits in this area only pertain to public employers in the US and include: a security guard suing the Dona Ana Detention Centre (New Mexico), teachers suing the Los Angeles Unified School District (LAUSD), an employee suing the Durham County’s Sheriff’s Office (North Carolina), and health care workers suing the Houston Methodist Hospital. All defendants in these cases issued mandatory vaccination policies. The lawsuits in New Mexico and North Carolina have not yet been resolved. However, the LAUSD revoked its vaccination requirement after the lawsuit was filed against them in order to avoid public backlash.

There is ambiguity surrounding the direction of this current litigation. The Equal Employment Opportunity Commission, an entity that regulates public and private employers, has stated that US employers could require employees to get vaccinated if they can prove your lack of vaccination poses a threat to the health and safety of the workplace.  However, if an employee cannot get vaccinated due to a religious reason or medical condition, the employer may not have cause to fire you and may be required to accommodate you. That being said, the claimants in these lawsuits are relying on federal laws that entitle individuals to accept or refuse medication authorized for emergency use. As a result, there is no certainty surrounding what direction the courts will rule.

Interestingly, a federal judge dismissed the lawsuit filed against the Houston Methodist Hospital. Under its vaccination policy, health care workers were required to vaccinate themselves or face termination with cause. The policy was found to be valid, because the Court determined that employers could place limits on employee behavior in exchange for renumeration. However, there are two caveats to this ruling. This case involved the health care industry, and this setting is normally subject to higher standards of health and safety than other industries due to the centrality of patient care. Additionally, this case is being appealed, so the federal judge’s decision may not be upheld by higher courts.

As North America enters its fourth wave of COVID-19, some cities and provinces/states in the US and Canada are considering proof of vaccination requirements for entry into indoor dining and gyms, among other activities. New York, British Columbia, Manitoba, and Quebec are some of the first places to outright require proof of vaccination or a negative COVID-19 test for entry into entertainment venues and other public spaces. Other cities, provinces, and states are considering a similar approach but have yet to adopt a formal policy, so many business owners are taking it upon themselves to develop proof of vaccination guidelines for clientele and staff members.

Further, companies such as Microsoft and Walt Disney Co. have adopted similar requirements, mandating their employees to get vaccinated or submit to weekly COVID-19 testing as accommodation, while other employers are opting to wait for guidelines from the federal or provincial government before implementing such a policy. Federal workers in the US and Canada are already required to get vaccinated to come back to work, as are public workers in some provinces. The policies outlined above have only recently emerged, so lawsuits with respect to their validity have not yet developed.

To note, employment laws in the US are different than they are in Canada. As such, the US’s legal approach to mandatory vaccinations in the workplace may not be the same here. These cases are meant to provide an overview of the limited case law available on this subject, as Canada’s judicial review of these policies are behind that of the US. Although some other provinces and the federal government have indicated openness to vaccine passports and requirements at certain types of business, Alberta has indicated that neither measure will be adopted provincially. This does not preclude private businesses from mandating either masks or vaccines for their patrons, but such business would be well served by legal advice on human rights and privacy law repercussions.

Mandatory Vaccinations for Diseases Other than COVID-19 and Considerations of the Court

There is some case law surrounding mandatory vaccinations for diseases other than COVID-19 in the US and Canada. Further, there is legislation that addresses this issue in Ontario and New Brunswick. We outline these provisions below, as they show how the courts have responded in the past to lawsuits pertaining to mandatory vaccinations for contagious diseases.

The US court in Jacobson v Massachusetts (197 U.S. 11 (1905)) permitted mandatory smallpox vaccinations and fines for individuals who refused. The Court held that refusal could endanger the wellbeing of the general public. It suggests that making the vaccine compulsory was justified.

There are also labor arbitration decisions in British Columbia that uphold mandatory vaccination policies for certain diseases in healthcare and long-term care settings. Additionally, these decisions recognize the temporary removal of employees who refuse vaccination during an outbreak. Ontario has passed legislation to that effect, requiring long-term care employees and paramedics to be vaccinated. These provisions allow for religious exemptions (Long-Term Care Homes Act, 2007, S.O. 2007, c-8; Ambulance Act, RSO 1990 c A19; Interior Health Authority (Cottonwoods Extended Care Facility) v BC Nurses’ Union, 2017 CanLII 72435; Carewest v. A.U.P.E., 104 L.A.C. (4th) 240).However, as stated previously, employees in the healthcare industry are more likely to be required to vaccinate themselves versus other industries due to their close-contact interactions with individuals who have compromised immune systems. Currently, nurses in Canada are reacting to various mandatory vaccination policies in healthcare facilities and we expect that they or their organizations will take these policies to court.

In sum, these decisions seem to indicate that a tribunal or court reviewing mandatory vaccination policies may consider:

• The effectiveness of the vaccine or other mandatory measures;
• The intrusiveness of the policy;
• The nature of the workplace; and
• The legitimate business interests of the employer.

Summary

 If an employer is mandating vaccines to enter the workplace, it should have a bona fide business interest in collecting that information, the loss of privacy should be minimized and proportionate to the benefit gained, and there should be some effort to accommodate human rights concerns. These requirements may be difficult, though not impossible, to meet if a mandatory proof of vaccination policy is implemented.

These are complicated issues in a fast-changing environment. Lawsuits pertaining to vaccination policies are ongoing yet unresolved, and more are likely to emerge as provinces across Canada attempt to smother a fourth wave of infections. While we endeavor to keep you informed, we strongly recommend that you seek legal advice before undertaking any steps. We are prepared to answer your employment questions and have prepared model vaccination policies to address the concerns outlined in this article.

For more information on these topics or any other matters, please contact one of the above lawyers from Bryan & Company LLP or access our Employment Law group here and it would be our pleasure to assist.

This article was prepared with: RHEA SHARMA, Summer Student 2021