In response to Alberta's reopening and current public health requirements, including the Restrictions Exemptions Program, many organizations across the province have implemented vaccination policies that require patrons or employees to present proof of vaccination or a negative COVID-19 test to gain in-person access to their premises. As a result of implementing these policies, organizations have had to balance current governmental and public health guidance and requirements, occupational health and safety obligations and operational needs with individuals who allege the measures unreasonably violate their rights and freedoms.
The recently published statement, "Vaccine mandates and proof of vaccination," by the Alberta Human Rights Commission (the "Commission") provides insight for individuals and organizations, including employers, into how the Commission may handle human rights complaints arising from vaccination policies.
Personal preference is not a protected ground
In its statement, the Commission affirms and recognizes the protection of the Charter of Rights and Freedoms, namely Section 7 and the right to "life, liberty and security of the person." Against the backdrop of the current COVID-19 situation and government public health requirements, the Commission also recognizes that some measures, such as vaccination policies, are justifiable limitations on certain rights to protect the health and safety of the general public.
Furthermore, the Commission reiterates the Alberta Human Rights Act ("AHRA") only addresses discrimination on certain protected grounds, such as disability and religious belief. On this basis, the Commission states that it cannot address claims of alleged Charter right violations or on the basis of personal opinion or political beliefs.
Vaccination policies permissible under Alberta Human Rights Act and accommodation
The Commission's statement makes clear that vaccination policies are permissible:
"The requirement to show that a person has been vaccinated before they can enter certain businesses is permissible under the Alberta Human Rights Act, as long as those who have a valid exemption are reasonably accommodated."
The Commission also recognizes that some individuals may not be able to receive vaccination and remain unvaccinated due to human rights-related reasons, such a disability or religious beliefs. To establish a religious-based exemption, an individual must demonstrate that the refusal to be vaccinated is sincerely held and connected to their faith. The Commission does not provide further guidance on potential documentation to support a request for a religious-based exemption. Individuals seeking a medical exemption may be required to present a letter from a physician or nurse practitioner, which clearly outlines the individual's name and the time period that the exemption is valid as well as includes the medical professional's name, contact information, registration number and signature.
In instances where individuals assert human rights-related reasons as a basis for exemption from vaccination policies, organizations, businesses, and employers must fulfill their duty to accommodate. Accommodation may take a variety of forms, including temperature reading and rapid COVID-19 testing. Businesses may employ alternate means of providing service to customers, such as curbside pickup, online shopping, and delivery. Employers may consider accommodating employees by allowing employees to regularly undergo COVID-19 testing and present a negative COVID-19 test result or to work remotely.
In addition to human rights obligations, organizations, businesses, and employers must be aware of and comply with privacy obligations with respect to individuals' vaccination information. For example, organizations should limit the amount of information being collected to what is reasonably required to fulfill the purpose of the policy, inform individuals of the purpose of collecting personal information, such as vaccination information, and employ safeguards for securely storing and for sharing this information.
Key takeaway for organizations and employers
While the Commission's statement offers only a general overview of vaccination policies, the statement lends support and guidance to organizations and employers who have implemented or are considering implementing a vaccination policy.
Should you have specific questions about this article or would like to discuss it further, please contact the author or a member of the Employment, Labour & Equalities Group.