In a workplace context, the Human Rights Code (the “Code”) prevents employers from discriminating against employees based on the number of protected characteristics (disability, religion, sex, age etc.). Where appropriate, the Code requires employers to accommodate employees that have one of these protected characteristics, up to the point of undue hardship. The Code also extends to service providers and their clients with these protected characteristics.
Recently, mandatory COVID-19 vaccination policies have become commonplace for employers and service providers. These policies are controversial, causing significant backlog of cases for the BC Human Rights Tribunal (“BCHRT”). However, BCHRT has recently begun rendering decisions that uphold mandatory vaccination policies.
Recently, the BCHRT addressed discrimination concerns regarding the BC Government vaccination requirements for services. In Complainant v. Bonnie Henry, 2021 BCHRT 119, the complainant alleged discrimination from receiving services based on a physical disability (asthma) and the complainant not wanting to receive the “experimental” COVID-19 vaccine. In finding that the complainant had failed to establish a connection between the disability and the adverse impact of not receiving the service, the BCHRT stated:
“…it is not enough to prove discrimination to have a protected characteristic and have experienced an adverse impact: there must be a connection between the two. The person making the complaint must establish that connection. Here even if the complainant had outlined an adverse impact, such as being denied a service because he was not fully vaccinated against COVID-19, he would then have to allege the facts that can establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from being able to get vaccinated. An ideological opposition to or distrust of the vaccine would not be enough.”
Mandatory COVID-19 vaccination policies can be enforceable if they are carefully drafted, consider appropriate human rights and privacy laws, are reasonable for the specific workplace and are properly communicated to employees.
