No Vaccination Exemptions for Hurt Feelings Says AB Human Rights Commission – MLT Aikins

Since the announcement of Alberta’s Restrictions Exemption Program and the City of Calgary’s COVID-19 Vaccine Passport Bylaw, companies in Alberta are increasingly implementing policies that require in-person customers to provide proof of vaccination or negative COVID-19 test results.

The prevalence of such policies may create mounting tension between companies that are seeking to implement vaccination policies in line with government policy and medical advice, and customers who may feel that such policies unfairly restrict their rights and freedoms.

According to the Alberta Human Rights Commission’s (the “AHRC”) recently published guidance, it will not and cannot address claims of rights violations on the grounds of personal or political belief. The AHRC takes the stance that public health and safety considerations outweigh individuals’ feelings that COVID-19 restrictions violate their rights to personal agency, privacy and bodily integrity. Companies will however need to accommodate persons who are unable to get a vaccine due to valid medical exemption or accommodation on the basis of another protected human rights ground but only to the extent that alternatives, such as online shopping, delivery or curbside pick-up, are unavailable.

Proof of Vaccination Policies are Permissible under Human Rights Legislation

In guidance published on October 8, 2021, the AHRC confirmed that policies that require proof of vaccination or a negative COVID-19 test as a prerequisite to in-person services are permissible under the Alberta Human Rights Act, so long as valid medical exemptions are reasonably accommodated.

Meaning, companies can be confident that proof of vaccination policies will not offend Alberta human rights law on the condition that they accommodate persons with valid medical exemption or accommodation on the basis of another protected human rights ground for not vaccinating. For example, the AHRC suggests requiring negative COVID-19 test results rather than proof of vaccination or offering regular COVID-19 testing to employees or service-users who are physically unable to vaccinate. For companies that are concerned about health and safety risks, it is permissible to offer alternatives to in-person service, including online shopping and delivery or curbside pickup, rather than allowing for exemptions to their vaccination policies.

For companies unsure of how to determine if a request for accommodation due to a valid medical exemption or accommodation on the basis of another protected human rights ground is legitimate, the AHRC suggests asking for an original letter from a physician or nurse practitioner that confirms a medical reason exists that prevents the individual from getting vaccinated. This complies with guidance from the Government of Alberta concerning valid medical exemptions.

Personal Preference Not a Protected Ground

Notably, the AHRC addressed popular concerns about individuals’ rights to bodily integrity, agency and privacy stating:

In Canada, we enjoy the protection of the right to ‘life, liberty and security of the person’ under section 7 of the Charter of Rights and Freedoms. We are used to these protections and voicing concerns when our rights are put at risk. However, even Charter rights are subject to reasonable limits as demonstrably justified in a free and democratic society (section 1 Charter). The balancing of health and safety pressures during a pandemic may override certain rights, for a time, in the interest of protecting the general public from COVID-19.

To put it bluntly, the AHRC cannot and will not address concerns about perceived violations of Charter rights grounded in personal beliefs or political viewpoints. The AHRC will prohibit individuals who believe that public health requirements violate their personal rights and freedoms from launching human rights complaints against corporations that require vaccination as a condition to in-person services.

Conversely, those persons who have valid medical exemption or accommodation on the basis of another protected human rights ground for not being vaccinated may bring a valid human rights complaint if they are denied access to services for which no alternatives are offered or available.

Other Considerations for Corporations Considering Proof of Vaccine Policies

This recent guidance from the AHRC should provide comfort to corporations that have or are considering implementing vaccination policies, with or without medical exemptions. However, it is important to remember that vaccination policies may still create privacy and enforcement concerns not discussed in this article.

Employers with questions regarding the implications of mandatory vaccination policies in their workplaces or any questions regarding vaccination and COVID-19 testing policies should contact a member of our labour and employment law team.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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