Vaccination Status and the “New Normal”

As governments and businesses seek to avoid closures that have so heavily impacted the economy and everyday life, many are looking to vaccine passports and/or considering mandatory vaccination in the workplace to facilitate a return to “normal” operations.

On August 12, 2021, Dr. Bonnie Henry, BC’s Provincial Health Officer, announced that all workers in public and private long-term care facilities must be vaccinated by October 12 and that all care homes and assisted-living facilities must provide the B.C. Ministry of Health with vaccination information in respect of their staff.  Dr. Henry also advised that, effective immediately, unvaccinated volunteers and personal service workers will not be permitted to access these facilities. These requirements will be recorded in an order (which has not yet been published effective the date of this article).

On August 13, 2021, Omar Alghabra, Canada’s Transport Minister, announced that all federal public servants and those working in federal Crown corporations and certain other federally regulated industries must be vaccinated by the end of October, if not sooner.

This order and these announcements follow several other significant announcements relating to the collection of vaccination information, vaccine passports, and mandatory vaccination, including confirmation by Dr. Teresa Tam, Canada’s Chief Public Health Officer, that Canada is now in a “fourth wave” as a result of the COVID-19 Delta variant.

Mandatory Vaccination in the Workplace

Public debate on mandating vaccines continues, however, that debate has seen a significant shift in recent days.

Ultimately, whether or not an employer is justified in imposing vaccination requirements will depend on a number of facts, including the ever-changing risk caused by successive variants of the COVID-19 virus.  Employers who decide to implement vaccination requirements should do so thoughtfully and carefully, after obtaining legal advice.

For example, Dr. Henry explained that her order for mandatory vaccination in long term care is supported by the BC Information and Privacy Commissioner as a proportional and reasonable response to the pandemic.

Dr. Henry articulated the following justification:

1. The majority of deaths and impact to life have been in long term care;
2. The transmission of the variants require additional protection;
3. There are currently eight (8) COVID-19 outbreaks in long term care;
4. While a majority of workers and residents are vaccinated, in some cases the average was lower than the provincial average of 71.6 percent of fully vaccinated individuals; and
5. The outbreaks primarily related to unvaccinated workers but impact vaccinated workers and residents; and
6. Knowing vaccination status will help the Ministry of Health assess risk.

Dr. Henry also advised that she is considering whether a mandatory vaccination order should be put in place in other health care settings and she has articulated that she supports businesses, particularly in high contact/high capacity environments, requiring proof of vaccination to access the business.

Vaccine Passports

As concerns about the Delta variant increase, Canadian organizations are starting to implement various forms of vaccine passport or proof of vaccination requirements for both employees and patrons.  To date, this has included universities and colleges, stadiums, and restaurants, among others.

We previously reported on the Statement issued by the Joint Privacy Commissioners on May 19, 2021, “Privacy and COVID-19 Vaccine Passports”.

The Joint Commissioners articulated the following principles in respect of implementation of vaccine passports:

1. Necessity: Their necessity must be evidence-based and there must be no other less privacy intrusive measures available and equally effective in achieving the specified purposes.
2. Effectiveness: vaccine passports must be likely to be effective at achieving each of their defined purposes at the outset and must continue to be effective throughout their lifecycle.
3. Proportionality: the privacy risks associated with vaccine passports must be proportionate to each of the public health purposes they are intended to address. Data minimization should be applied so that the least amount of personal health information is collected, used or disclosed.

The complete statement can be found here.

In order to facilitate a return to international travel, the federal government recently announced that a government document that will set out COVID-19 vaccination history will be available in the fall.  The official digital passport will use data provided by the provinces and territories.  British Columbia’s health officials have stated they are working with the federal government on this initiative.  On August 13, 2021, the Federal Transport Minister also announced similar rules would soon also apply in many cases to domestic travel by air, rail, and sea.

The Quebec Government is also poised to roll out its version of a vaccine passport on September 1, 2021, in high capacity/high contact situations, such as festivals, bars, restaurants, gyms and training facilities.  It has stated it may roll this initiative out to other settings as well.  Manitoba and Prince Edward Island are requiring vaccine passports to access certain non-essential services.

In contrast, the provinces Alberta and Ontario have announced these provinces do not intend to implement vaccine passports.

We anticipate there will be further important developments that employers should monitor over the coming weeks.

 

For more information, please see our article on the B.C. Human Rights Commissioner’s guidance here. For questions, please contact any of the authors of this article: Keri Bennett, Drew Demerse, and Christopher Munroe.