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

The BC Provincial Health Officer's Order requiring proof of vaccination for access to certain discretionary events and businesses resulted in a large number of inquiries and complaints filed with the BC Human Rights Tribunal alleging discrimination in connection with the pending vaccination requirements. This issue has emerged as one of considerable public interest and concern and in light of the volume of these types of complaints and public interest in this issue, the Tribunal published a couple of recent screening decisions summarized below.

Complainant v Dr. Bonnie Henry, 2021 BCHRT 119

This is the Tribunal's first screening 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 would not proceed with the complaint because the complaint did not set out facts that could violate the Code.

The complainant said he had asthma and pneumonia as a child, and did not want services curtailed because of an “experimental vaccine.”

The test for establishing discrimination is found at paragraph 8 of the decision:

a complainant must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact: Moore v. British Columbia, 2012 SCC 61 at para. 33 [Moore]. emphasis added

When applying the test to the facts of the current case, the Tribunal Chair found that while asthma counts as a physical disability, protected under the B.C. Human Rights Code, the complainant had not yet experienced an actual adverse impact as of the date of the complaint.

Without an actual adverse impact related to a service, facility or accommodation customarily available to the public, this Complaint could not constitute a breach of the Code. (para 11)

The Tribunal went further and added that even if the complainant was denied a service because he was not vaccinated against COVID-19, he still had 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.”

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

This is the second screening decision released by the Tribunal on September 9, 2021. In this case, 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 filed this complaint under s. 13 of the Human Rights Code on the basis of the protected characteristic of political belief (political belief is only a ground of discrimination in relation to employment). The Tribunal Chair dismissed the complaint and said that while it 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.

The Complainant filed this complaint on their own behalf as well as others as described above. The complaint said:

The British Columbia government has made a very aggressive and unjustified move that goes against our basic human right to bodily autonomy and medical freedoms. The government has no right to tell us what goes into our bodies or threatening us into getting this vaccination by taking away our basic rights and freedoms. This is segregation, discrimination, and derogatory, and has no place in modern society.

The same test was applied here from the Moore Supreme Court of Canada decision:

To establish discrimination contrary to the Code, a complainant must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact

The Tribunal Chair found that political belief includes “public discourse on matters of public interest which involves or would require action at a governmental level”: Fraser v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2019 BCHRT 140 at para. 59; Bratzer v. Victoria Police Department, 2016 BCHRT 50 at para. 271 [Bratzer].

In this case, at paragraph 11 the Tribunal found:

I accept that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. In saying this, however, I stress that protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules. Rather, it protects a person from adverse impacts in their employment based on their beliefs. For example, in Bratzer, the Tribunal found that the employer had discriminated against the complainant because of his advocacy in connection with drug laws. He still had to follow those laws despite his opposition to them, but his opposition to them could not be the basis for adverse treatment in his employment, subject to a bona fide occupational requirement.

"Without allegations of an actual adverse impact experienced by the proposed class in their employment, this Complaint could not establish a breach of the Code. Accordingly, it will not proceed and is dismissed."

Employer Takeaways

This decision is a concerning one for Employers. The Tribunal Chair’s statement at paragraph 11 seems to suggest that employees who experience an adverse impact in the workplace due to their view regarding Public Health Orders (and therefore vaccination) can make a legitimate complaint under the BC Human Rights Code on the basis of political belief. Will this open the floodgates?

BC is one of a few provinces in Canada where political belief is a protected ground under the Human Rights Code under Discrimination in Employment. The Tribunal has never provided a definition of “political belief” however it has given the term a broad and liberal definition and found that it is not confined only to partisan political beliefs. That being said, it has also clarified that political belief is not unlimited; comments and beliefs in relation to human resources, labour relations policy, or workplace conditions may not fall within its ambit.

It will be very interesting to see how the Tribunal rules on these issues in the future. For now Employers must continue to be mindful of human rights considerations when making decisions regarding COVID-19 policies and employee discipline around vaccination issues. As the applicable law and policies are evolving so rapidly, it is imperative to continue to seek professional advice on these important issues.

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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