Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group ([email protected]) 

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Due to the prevalence of the Delta variant and recent rise in COVID-19 case numbers that is being described as the 4th wave of the pandemic in Canada, the federal and provincial governments are considering various vaccination mandates and encouraging all employers to implement workplace vaccination strategies in consultation with their labour law advisors.

B.C.’s Proof of Vaccination Requirement

On August 23, 2021, the B.C. Government announced a new order from the provincial health officer that will require individuals aged 12 and older 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.

This is the updated full list of settings where proof of vaccination will be required based on the B.C. Government's September 7, 2021 News Release:

• indoor ticketed sporting events
• indoor concerts, theatre, dance and symphony events
• licensed restaurants, and those offering table service (indoor and outdoor dining)
• pubs, bars and lounges (indoor and outdoor dining)
• night clubs, casinos, movie theatres
• fitness centres/gyms/adult sports (indoor)
• indoor group exercise activities
• organized indoor events with 50 or more people (e.g., wedding receptions, organized parties, conferences, workshops)
• discretionary organized indoor group recreational classes and activities

On September 10, 2021, two official Orders were released, the Food and Liquor Serving Premises Order, and the Gatherings and Events Order.

The following are some important points to note:

• surprisingly no medical, religious or other exemptions will be provided; however, the Orders allow for requests for reconsideration of the order based on a few limited grounds covered below;
• retail stores, grocery stores and other essential services are not contemplated by this announcement;
• the order does not apply to various settings outlined in paragraph L to the Preamble (pages 2-3 of the Order), including but not limited to:
• workers at a workplace when engaged in their work activities, including staff meetings; work camps;
• employment related training;
• places of worship such as churches, synagogues or mosques;
• health or social services provided to people in need, such as warming or cooling centres;
• drug and alcohol support group meetings;
• court sittings wherever they occur;
• the Orders are time limited through to Jan. 31, 2022, subject to possible extension;
• the measures set out above do not apply to K-12 schools (public and independent), but they do apply to large indoor events (theatre, concerts) attended by parents, family and/or the public.

GATHERINGS AND EVENTS

The Gatherings and Events Orders includes the following definitions of note:

• “event” means a seated in-person gathering in a place with seating;
• “participant” means a person who attends an event, but does not include an organizer, event staff member, official, performer, player, athlete, officiant, or any other person who is acting in an official or service capacity;
• “place” means a venue, other than a private residence, and includes a hotel ballroom or conference room, a banquet hall, conference hall, auditorium, recreation centre, theatre, movie theatre, multi-movie theatre complex, casino, work-out gym, exercise or dance facility or studio, recreational facility arena, stadium, vacation accommodation, tent or a premises as defined in the Food and Liquor Serving Premises Order;

The Order describes various requirements for ourside events, and inside events, including capacity, dancing restrictions, sanitation, seating etc, which can be reviewed in their entirety at pages 4-7 of the Order.

Organizers are required to obtain proof of vaccination from participants for Inside Events as follows:

“event” means:

• a. a gathering of more than 50 participants in an inside place for social, entertainment, dancing, choral, musical, recreational, gambling, arts or crafts, or business and includes a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party;
• b. a gathering of participants in an inside place for the purpose of an adult sports activity, or an exercise, fitness or dance activity or class;
• c. but does not include a program for children or youth, or a meeting of a council, board, or trust committee of a local authority as defined under the Community Charter, the Local Government Act or the Islands Trust Act, or a school board, at which members of the public attend in person;

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. The following apply:

• An organizer must obtain proof in the form of a vaccine card that a participant has received two doses of vaccine
• An organizer must not permit a participant who has not provided the organizer with proof in the form of a vaccine card of having received onr (or two starting Oct. 24) doses of vaccine to enter or remain a place for the purpose of an event
• Proof of vaccination that has to be provided includes photo identification and electronic proof or a printed copy of an electronic proof that the owner is vaccinated (issued by the government in the form of a QR code, accessible through the “BC Services Card” electronic online platform and showing the name
• Despite the requirements in section 3 (a) to (d), between September 13, 2021 and September 26, 2021, a participant may provide the paper record of vaccination which the participant received at the time of vaccination from the person administering the vaccination, and photo identification, as proof that the participant has received at least one dose of vaccine
• An operator must not scan the QR code on a vaccine card, or paper record of vaccination, with any tool other than a BC Vaccine Card Verifier App.
• an organizer must not retain proof of vaccination or identification provided by a participant, or use it for any purpose other than to confirm that a participant has been vaccinated, as required by this Order, except
• with the written consent of a participant, an organizer may keep a record of the fact that the participant has provided proof of being vaccinated in compliance with this Part until this Order expires or is repealed, and the organizer may rely upon this record to satisfy the requirements in this Part with respect to future participation by the participant in an event at the same place.
• This Order expires at 12:01 A.M. on January 31, 2022.
• Relevant businesses are required under section 42 of the Public Health Act to comply with this Order. Failure to comply with this Order is an offence under section 99 (1) (k) of the Public Health Act.  Enforcement action can be taken under Part 4, Division 6 of the Public Health Act.

Requests for Reconsideration

The Order provides:

Pursuant to section 43 of the Public Health Act, you may request a medical health officer to reconsider this Order if you:
   (a) have additional relevant information that was not reasonably available to the me or another health officer when the order was issued or varied,
   (b) have a proposal that was not presented to me or another health officer when the order was issued or varied but, if implemented, would
           (i) meet the objective of the order, and
           (ii) be suitable as the basis of a written agreement under section 38 [may make written agreements], or
   (c) require more time to comply with the order.

A request for reconsideration of this Order on the basis of a medical contraindication made by a person to whom the Order applies must include a signed and dated statement from a medical practitioner, based upon a current assessment, that the health of the person would be seriously jeopardized if the person were to receive a first or second dose of vaccine, and a signed and dated copy of each portion of the person’s health record relevant to this statement.

A request under section 43 may be submitted to the Provincial Health Officer at [email protected] with the subject line “Request for Reconsideration about Proof of Vaccination”. 

FOOD AND LIQUOR SERVING PREMISES ORDER

This Order applies to owners and operators, as well as patrons of restaurants with table service, cafes, food primary or liquor primary establishments, including pubs, bars, lounges and nightclubs, liquor manufacturing facilities that have tasting rooms with seating or private clubs. The Order describes restrictions for operating and seating, as well as Proof of Vaccination similar to Gathering and Events Order.

Paragraph M clarifies premises it does not apply to, including food or liquor serving premises which are located in airports or at BC Ferries terminals or on BC ferries, designated onsite liquor retail and dedicated sampling room areas without seating attached to a liquor manufacturing facility, a person providing or collecting take-out food, and more. 

Impact of the Proof of Vaccination Order on Employers and Workplaces

The proof of vaccination requirement only applies to patrons attending the events/settings and not to the employees working at a discretionary business/event. However, from our first-hand experience with our business clients, many individual businesses are putting in place vaccination policies for employees as well as contractors and anyone else entering their workplace, encouraged by the recent events and Orders.

This can affect your workplace and employees if:

• you or your staff work closely to provide services to any other Employers who are covered by the Order or have their own Workplace Vaccination Policy, you might face difficulties providing services if your staff is not fully vaccinated;
• if your employees are required to attend outside networking meetings or other business events, they might be unable to attend if unvaccinated.

Other Notable Recent Mandates

B.C. mandates COVID-19 vaccination for all long-term care, assisted living workers

On August 12, 2021, B.C.'s Provincial Health Officer Dr. Bonnie Henry announced that all workers in long-term care and assisted living facilities in BC will be required to be vaccinated against Covid-19 by October 12, 2021. The mandatory vaccination applies to staff, as well as volunteers and personal service providers entering long-term care settings. Until Oct. 12, all unvaccinated staff are required to wear personal protective equipment (PPE) and be tested regularly for COVID-19. 

Mandatory Vaccinations for the Federal Public Service and Federally Regulated Sectors

This was followed on August 13, 2021 by the Federal Government announcing mandatory vaccinations will be required as early as the end of September for the Federal Public Service and Federally Regulated Sectors. The announcement included the following important statements:

The Government of Canada today announced its intent to require vaccination as early as the end of September across the federal public service. Vaccinations are our best line of defence and for those few who are unable to be vaccinated, accommodation or alternative measures, such as testing and screening, may be determined in each situation, to protect broader public health by reducing the risk of COVID-19.

In addition, as soon as possible in the fall and no later than the end of October, the Government of Canada will require employees in the federally regulated air, rail, and marine transportation sectors to be vaccinated. The vaccination requirement will also extend to certain travellers. This includes all commercial air travellers, passengers on interprovincial trains, and passengers on large marine vessels with overnight accommodations, such as cruise ships.

(...) Further, the Government of Canada expects that Crown corporations and other employers in the federally regulated sector will also require vaccination for their employees. The government will work with these employers to ensure this result.

The Government of Canada is also calling on all organizations beyond the federally regulated sector to put in place their own vaccination strategies, drawing on the advice and guidance available from public health authorities and the Canadian Centre for Occupational Health and Safety.

Get in Touch!

Our Employment & Labour Group has been working with businesses to develop and draft the right policy for their workplace and are here to help! Get in touch today.

CLICK HERE to get a free copy of our webinar recording and presentation materials from our June webinar Your Guide to Rolling Out a Vaccination Policy with Chris Drinovz and senior lawyer Mike Weiler.

FAQs by Employers Regarding Vaccination Policies

We are not aware of this specific statement. However, Dr. Henry did advise that there will be no exemptions to the B.C. mandate and passport at this time, during this period of increased risk.

As an employer, you do need to provide protection and accommodation to employees who are protected under the British Columbia Human Rights Code, such as for a medical or sincere religious belief.

Under human rights legislation, protection of a religious belief or practice is triggered when a person can show that they sincerely believe that the belief or practice (a) has a connection with religion; and (b) is “experientially religious in nature”: Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 69.

That being said, there have been no confirmed major religions to my knowledge that hold this belief. One driver for testing sincerity is the fact that no major organized religion objects to the vaccines, and Roman Catholic and other Christian, Jewish and Muslim leaders have advised followers to get the shots. Pope Francis went so far as to say that getting vaccinated was “the moral choice because it is about your life but also the lives of others.”

How can you know if your employee’s religious belief is sincere? For some of our clients who have implemented mandatory vaccination at the workplace, we created a Request for Accommodation Form. In order to qualify for the exemption, employees are required to fill out the form which includes providing a written and signed statement objecting to immunization due to sincere and genuine religious beliefs which prohibit immunization, in which case supporting documents may be required. It also mentions the employer can request further documentation such as a letter from an authorized representative of the church, temple, religious institution, etc. that you attend. Contact Chris Drinovz if you'd like to implement a Policy and request for accommodation forms.

Recent Relevant Case:

In the one BC Human Rights Tribunal case we summarised here, an employee objected to wearing a mask arguing it was against his religious beliefs to cover his face from God. https://www.ksw.bc.ca/employee-opinion-on-mask-wearing-not-protected/

At para 11, the Tribunal Member set out the reasons for his finding that the complaints set out cannot be a contravention of the Code:

These facts, if proven, could not establish that the Worker’s objection to wearing a mask is “experientially religious in nature”. He has not pointed to any facts that could support a finding that wearing a mask is objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”: Amselem at para. 43. Rather, his objection to wearing a mask is his opinion that doing so is “arbitrary” because it does not stop the transmission of COVID‐19.

(…)

The Worker’s opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion. While the Worker states his belief that it dishonours God to cover his face absent a basis for doing so, the Workers’ complaints, in essence, are about his disagreement with the reasons for the mask‐wearing requirement set out in the Orders.

Yes, it certainly is, employers should prohibit any form of harassment, discipline, reprisal, intimidation, or retaliation based on an employee's or contractor’s decision to get or not get vaccinated. Employees that discriminate against or bully a fellow employee or contractor because of their decision to vaccinate or not to vaccinate can be subject to discipline, up to and including termination for cause. A lot of employers have a Respectful Workplace Policy in place, which would may prohibit any form of harassment or discrimination at the workplace, including related to one's vaccination status and outline a complaint procedure for dealing with this. For our clients who implemented a Vaccination Policy, we have included language on this specifically in the Policy.

If an employee refuses to follow a workplace policy, an employer can discipline them according to the policy, including up to termination of employment. This is subject to the Human Rights Code, so it is important to obtain the reason why the employee is not following the policy and assess whether there is a duty to accommodate.

Lay offs are tricky - absent seasonal workers, the right to lay-off in a written contract, or the employee’s clear agreement, a temporary layoff (even for one day) can be treated by the employee as a constructive dismissal under the common law, triggering the employer’s notice or severance pay obligations either under the employment contract or the common law.

The British Columbia Employment Standards Act provides that after 13 weeks in any 20 week period, any temporary layoff would automatically become a termination under the Act unless the employer has applied for and received a variance from the Director. However, the Courts have held that this does NOT prevent employees from exercising their common law rights to claim a constructive dismissal if the layoff is less than 13 weeks. We covered this topic in an article available here.

Please note there are different rules for unionized employers which will depend on the language of the collective agreement. There may also be exceptions for non-union employers, particularly in the health care or federal sector if any of the Public Health Orders or federal government mandates require your employee to be vaccinated in order to perform their duties.

In any circumstances it is important to obtain professional advice before laying off an employee.  

Yes, you can. Just be mindful that you still cannot discriminate against individuals with traits protected by the British Columbia Human Rights Code, such as medical condition or sincere religious belief preventing the protected individual from getting the vaccine.

We have previously done a seminar on the “Art of Hiring” where we address human rights considerations when hiring new employees. If you would like access to these materials, please contact Chris Drinovz.

Yes, the cases are below – some of them are not directly regarding vaccination, they address masks, however it’s the same principle of what is a protected ground under the Human Rights Code specifically religion or medical/disability arguments:

Political Belief Argument against new Proof of Vaccine Status requirement

Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120

The Complainant filed this complaint on August 24, 2021 on behalf of “people who are opposed to being forced into getting the COVID‐19 Vaccination and getting our basic human rights and freedoms stripped from us.” The Complainant has filed her complaint on the basis of the protected characteristic of political belief in the area of employment. The Tribunal Chair dismissed the complaint and said that while she accepts a belief opposing government rules regarding vaccination could be a political belief, it only protects a person from adverse impacts in their workplace and does not exempt them from obeying provincial health orders. She said the complainant alleges no facts that her employment has been affected. “The Code does not permit a direct challenge to a public health order based merely on disagreement with it.”

Medical Condition Argument against new Proof of Vaccine Status requirement

Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119

Decision issued on September 9, 2021 where the Complainant filed a complaint against Dr. Bonnie Henry, Provincial Health Officer for British Columbia, alleging discrimination in the area of services on the basis of physical
disability under s. 8 of the Human Rights Code. The Complainant said that the proof of vaccination requirements are discriminatory. The Tribunal determined that it will not proceed with the complaint because it does
not set out facts that could violate the Code. The complainant said he has asthma and does not want services curtailed because of an “experimental vaccine.” While asthma counts as a physical disability, protected under the B.C. Human Rights Code, the complainant has not yet experienced an actual adverse impact. The Tribunal added that even if the complainant was denied a service because he is not vaccinated against COVID-19, he still has to establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from getting the shot. “An ideological opposition to or distrust of the vaccine would not be enough."

Religious Objections to Mask Use

In The Worker v. The District Managers, 2021 BCHRT 41, the Tribunal found that an objection to wearing a mask that is based on what was ultimately found to be personal preference and opinion is not protected by the Code. We summarized the decision in an article here.

Medical Exemptions for Retail Customers

In The Customer v. The Store, 2021 BCHRT 39, the Tribunal found that without establishing a disability protected by the BC Human Rights Code (the “Code”) the complainant could not seek redress from the Tribunal for being refused service without a mask.

Rael v Cartwright Jewelers and another, 2021 BCHRT 106

The complainant, a woman with an alleged breathing issue, was denied entry to the respondent’s store when she declined to wear a mask.

Christiansen v MedRay Imaging, 2021 BCHRT 107

The complainant, a man with a broken foot, walked into a clinic to obtain an x-ray in July 2020. Upon arrival, the un-masked complainant was asked to wear a mask in accordance with the clinic’s policy, was informed that a mask could be obtained at the neighbouring pharmacy, and was further advised that he would not be served without one.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at [email protected].

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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