The first year of the COVID-19 pandemic shone the spotlight on a number of new legal issues relating to testing, masking, and lockdowns – it was just eight months ago when Ontarians first faced fines for something as innocuous as sitting on a park bench.
The good news is that Canada has now reached a monumental milestone in its fight against the pandemic. Health Canada, on December 9, 2020, announced that it had authorized the Pfizer COVID-19 vaccine for Canadians 16 years of age and older. This vaccine is already being administered to health care and long-term care workers at Toronto and Ottawa-area hospitals.
While the introduction of the COVID-19 vaccine represents a glimmer of hope for all of us who yearn for a return to “normal” and “precedented” times (whatever that may be), it will also introduce a number of new legal issues relating to human rights, privacy rights, and workplace safety. In particular, questions remain with respect to business owners’ ability to exclude non-vaccinated customers and clients from their premises, and regarding the newly proposed “COVID immunity passports” that are to be provided to those who receive the vaccination.
COVID-19 Vaccines vs. Other Vaccines – The Legal Parallels
A number of legal pundits have attempted to draw a legal analogy between the COVID-19 vaccine and the flu vaccine, in part because flu vaccines have been available since the 1940’s and a number of legal decisions exist relating to employees’ refusal to receive the flu shot. Just two years ago, a union successfully brought a grievance to strike down a Toronto hospital’s workplace policy that its nurses must either receive the annual flu vaccine or wear a surgical mask in all areas of the hospital where patients are present (what is colloquially called a “vaccinate or mask policy”).
However, health experts will undoubtedly point out key differences between the flu vaccine and the COVID-19 vaccine, beyond the fact that the latter is designed to protect people from a much more lethal virus. For one, the COVID-19 vaccine has a reported ~90% effective rate during clinical trials, while the seasonal flu vaccine, according to the U.S. Centre for Disease Control, displays effectiveness in the range of 40% to 60%. In addition, the possibility of asymptomatic transmission of COVID-19 appears to be much higher than the risk of asymptomatic transmission of the flu.
In the above-mentioned case, the arbitrator, in finding the vaccinate or mask policy unreasonable, specifically pointed to the lack of scientific evidence concerning asymptomatic transmission of the flu, and the lack of scientific evidence relating to the use of masks in reducing the transmission of the flu virus to patients. In fact, the arbitrator specifically surmised that perhaps if a “better vaccine” and more robust medical literature became available, the entire matter might be appropriately revisited.
If the COVID-19 vaccine is found to be a “better vaccine” than the existing seasonal flu vaccines, then the line of jurisprudence relating to the flu vaccine may be informative at best, but certainly not determinative.
Instead, we should perhaps attempt to draw parallels between the COVID-19 vaccine and childhood inoculation programs (e.g. vaccines against measles, mumps and rubella), as these vaccines are found to have 90% or better efficacy. In Ontario, these vaccines are referred to within the Immunization of School Pupils Act, and parents are required to report to their local medical officer of health, vaccines administered to their school aged children.
Even for these vaccines, which are explicitly mandatory, rather than voluntary (as continuously stressed by government officials regarding the COVID-19 vaccine), exemptions can be obtained – both for medical reasons (if a child has a medical condition that prevents them from receiving the vaccine) and religious reasons (if the vaccination requirements conflict with sincerely held convictions based on religion or conscience). This means that there are children in Ontario who are attending schools without having received “required” vaccinations – though they may be removed from school during a disease outbreak.
But since Ontario businesses do not require patrons to provide proof of childhood vaccinations before entering their stores, there is little reason for the rubella vaccine to become a thorny issue for businesses and customers. So while the COVID-19 vaccine may end “unprecedented” times, it will also bring forth legal issues never before addressed with other vaccines.
Ottawa Businesses and the COVID-19 Immunity Passport
There is already some good news for Ontario business owners – the recently enacted Supporting Ontario’s Recovery Act protects businesses from legal liability relating to an individual being infected with or exposed to COVID-19 within a business’ premises, as long as said business made a good faith effort to act in accordance with public health guidance, and with federal, provincial and municipal laws relating to COVID-19, and have not been grossly negligent. This imposes a high legal hurdle for someone who contracts COVID-19 in a store or restaurant, to bring a successful lawsuit against the business owner.
However, even with statutory protections in place, other reasons exist for businesses to consider requiring that individuals visiting its premises be vaccinated. For one, it may be a smart practice to attract customers – 83% of Canadians surveyed this past September agreed with indoor masking policies (including within stores), and governmental enforcement of these policies, and it is likely that consumers will continue to choose to shop at those businesses that have put proactive measures in place to protect them. And beyond the legal obligation for businesses to protect their own workers, it makes sense for businesses to take all reasonable steps to prevent an outbreak which would temporarily close the business and potentially damage its reputation.
We know that Ontario’s Ministry of Health is planning to issue “immunity passports” to those individuals who receive a COVID-19 vaccine, as proof of inoculation. Minister of Health Christine Elliott has already hinted that the passport may be needed to enter certain public venues, such as movie theatres. Such a concept is not new – the World Health Organization has been issuing International Certificates of Vaccination since the 1950s – but what is new, and still in question, is how the COVID-19 immunity passport will be regulated by the Ontario government. Without any legislative intervention, the immunity passport may be worth less than the paper it is printed on.
What will such legislation look like? One possibility is that the Ontario government may introduce broadly worded legislation, like Ontario Regulation 364/20, which required businesses to screen all workers and essential visitors entering their work environment, without providing detailed guidance as to how the screening should take place or how long records should be kept.
Another possibility is that the provincial government may take a more laissez-faire approach and allow municipalities and regions to enact by-laws regarding immunity passports first, and only intervene when absolutely necessary. With masks, the City of Ottawa passed its by-law in July while the Ontario government only introduced provincial-wide regulations (Ontario Regulation 546/20) in October, once the second wave hit.
Similar to the masking by-laws, we expect that vaccine legislation (or by-laws) would address issues relating to exemptions, such as those individuals who may not be able to receive the vaccine due to allergy issues; however, it’s unclear when any proposed legislation will be introduced, let alone any timelines regarding how and when the vaccine will be distributed to the general public.
What should Ontario businesses do in the meantime? Begin considering the types of policies you want to introduce regarding the immunity passport. In particular, discuss the following with your legal counsel:
- how you would treat those individuals with valid vaccine exemptions versus those who do not have an immunity passport without a valid exemption;
- the likelihood of receiving a human rights claim if you have a vaccination policy without any exemptions spelled out – the more restrictive a policy, the more likely it will be legally challenged;
- how your policy would apply in the first months of 2021, when most people may not have had a chance to be vaccinated due to supply issues.
Once the legislation regarding the immunity passport is introduced, you will be poised to implement your policies quickly (subject to final legal review).
Lastly, if you want a sneak peek at the new legislation, keep a close eye on the aviation industry – the federal Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19 which addressed face masks within the aviation industry was introduced in June 2020, even before the City of Ottawa announced its Temporary Mandatory Mask By-law in July.
Businesses are Employers Too!
It may be trite to say, but almost every Ontario business is also an employer, and must follow all legal obligations relating to being an employer. Interestingly, the Supporting Ontario’s Recovery Act does not provide any legal immunity to employers – in fact, it specifically allows employees who are not covered under Ontario’s WSIB scheme to sue their employers in court if they contract COVID-19 at work. If you haven’t already done so, we recommend speaking with an employment lawyer about how to implement COVID-19 related policies within the workplace.
One thing is for certain: employers have a statutory duty under Ontario’s Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of its workers, and this duty may be legal justification to introduce a COVID-19 vaccine workplace policy.
At the same time, employers need to build in some room in any COVID-19 vaccine policy for human rights related accommodations, on similar grounds as to those exemptions relating to childhood vaccinations. Under the Ontario Human Rights Code, employers must accommodate employees to the point of “undue hardship”, a somewhat complicated legal concept that essentially describes the breaking point at which a reasonable employer may not be expected to accommodate their employee because of excessive costs or health and safety issues.
The key point about “undue hardship” is that what constitutes “undue hardship” for one employer may not translate to another workplace. Generally speaking, we would expect that workplaces like retirement homes or long-term care facilities may be permitted to implement a policy which compels its employees to be vaccinated. One hint comes from a fresh off the press arbitration decision involving a retirement home in Woodstock, Ontario, where an arbitrator found a workplace policy which required all employees to be tested for COVID-19 once every two weeks to be reasonable, despite the intrusiveness of such tests.
Another recent labour arbitration decision upheld an employer’s decision to terminate a Toronto Pearson Airport screening officer for cause, where the employee failed to follow its COVID-19 related policies by working (instead of isolating) while awaiting results of a COVID-19 test.
While there have only been a few cases tested by arbitrators to date, the mere fact that COVID-related litigation has already taken place further underlines the importance of receiving tailored legal advice to your workplace – what may be a reasonable policy within one work environment may not be reasonable in another.
About the author: Jay Kim is part of Brazeau Seller Law’s employment law group and his practice is focused on assisting employers and employees to successfully resolve workplace conflicts. He works with clients to ensure that appropriate employment agreements and policies are implemented within the workplace, and provides legal assistance to Ottawa-area businesses in relation to COVID-19 issues.
Note to readers
The above-noted information does not constitute legal advice and is of general application only. The information regarding COVID-19 is rapidly evolving and the information contained herein is accurate only up to the date of publishing (December 15, 2020).