This article originally appeared in the February/March 2021 issue of Canadian Music Trade magazine.
By Michael Raine
It’s finally happening. It’s been a hell of a long year, and since the earliest days of the pandemic, speculation about if and when a vaccine would be available was constant. But now there are two viable vaccines approved and more on the way, and they’re going into people’s arms. As of early February, just over one million Canadians have received their first vaccine dose, though that is only about 2.3% of the entire population and the efficiency of the rollout has not been without its speed bumps and criticism. But it’s happening! But that, of course, brings up a lot of questions for employers of all types. Not least of which is: can public-facing companies like retailers make the COVID-19 vaccine mandatory for their employees and customers?
“It’s a hot topic, and hot topics usually mean there’s no good answer. That’s where we’re at these days,” begins Kathleen Chevalier, a partner at the Canadian law firm Stikeman Elliott who specializes in employment and labour law. “There’s been a lot of articles written and think pieces pulled together in the employment law space about whether employers can or will be able to mandate vaccines. As you can imagine, the spate of those questions is quite high, because you could presumably have a person who’s otherwise able to get vaccinated – and there are obviously people that for health reasons could not – and simply chooses not to, for whatever reason. And so, you would be affecting a policy and a rule that would go against that person’s beliefs or position and effectively trying to mandate that they put something in their body that they don’t want, which you can imagine is about as intrusive of a measure as you can otherwise require.”
Likewise, there’s more questions than answers at the moment for Ryan Mallough, the director of provincial affairs for Ontario at the Canadian Federation of Independent Business. He says they’re getting a lot of calls from members wondering if they can get their businesses and employees prioritized for vaccination (the answer to that is no), and what they’re allowed to ask or mandate as far as vaccinations go.
“From a business perspective, our understanding is that it’s a little bit of a grey area. So, a business would have to consider health and safety, but also human rights. It’s our understanding that health and safety can trump human rights; however, because the vaccine is so new and the situation is evolving so quickly, whether or not a business will be able to make that case with the COVID vaccine is still untested and very up in the air,” Mallough tells Canadian Music Trade. “So, right now we can’t confirm or deny whether or not a business will be able to make that a condition or not.”
Within this conversation, mandatory mask wearing is commonly offered as a comparable situation. Provincial governments first gave businesses permission to institute their own mask mandates for employees and customers, and then later created province-wide mask mandates for all work environments and public spaces. But as Chevalier points out, it’s not an apples-to-apples comparison. For one, a vaccine – something permanently injected into your body – is a lot more invasive than a piece of fabric over your mouth. In terms of how courts would view it, a closer comparable, though not a perfect one, is mandatory workplace drug and alcohol testing.
“Generally speaking, our courts have been reluctant to intrude on somebody’s person in the employment law sphere. We see that quite often with drug and alcohol testing. That’s something that through the years has been routinely challenged and routinely struck down by our courts in terms of imposing these types of tests. And, I mean, that’s just taking a swab of somebody’s saliva or a sample of urine; that’s not putting something permanently into their bodies,” says Chevalier. “So, as you can imagine, applying that lens to it, you would think that this is something that’s unlikely to be upheld if an employer were to implement it.”
Chevalier acknowledges that there’s an obvious health and safety risk that favours vaccinations – and she personally hopes everyone who can get vaccinated chooses to do so – but ultimately thinks any vaccine mandate implemented by an employer would, if challenged, not be upheld in court.
When it comes to customers, the law does allow business owners to regulate who can and can’t enter their business. It also allows businesses to enforce reasonable grounds for denying service (i.e. no shirt, no shoes, no service). But here again, if discussing a proposed customer-focused vaccine mandate, the issue of health and safety versus human rights is key in the legal context. The law allows extraordinary health and safety concerns to trump other rights, and we’ve routinely seen that in many of the government-mandated measures during the pandemic, such as forbidding public gatherings. But does that argument legally hold up if, say, requiring customers to show proof of vaccination before entering a store? After all, as Chevalier points out, Ontario’s Human Rights Code says that everybody is entitled to partake of your goods and services and if you choose to deny those to anybody, or otherwise inhibit their ability to access them, it can’t be in a discriminatory manner.
“Now the question becomes, is being unvaccinated a protected ground upon which somebody could claim that they have been punished or discriminated against? That’s an interesting issue,” she says. “And so, if you’re a retailer and you think, ‘Okay, I want to make sure everybody that’s accessing my store is vaccinated,’ how do you do that? We’ve heard about electronic vaccine passports, where you tap it or something. Sounds like great technology, but who knows what’s possible? How would you demonstrate that? How would you be sure that it’s authentic? And again, from a discriminatory perspective, there’s people that can’t be vaccinated because they’re immunocompromised, or they’re otherwise unable to do it. Now you’ve basically told those people they can’t access your goods and services. So that’s a pretty problematic position from a legal perspective, I think.”
Thinking about what’s practical, Chevalier says that for retailers and other businesses, it would be easier and safer (legally speaking) to implement and enforce the existing COVID safety measures.
“So, I think it again comes down to, if I’m a retailer, rather than implementing a policy that’s probably going to be pretty poorly received by a lot of people — although well received by some, I’m sure — you’re likely better to take a modified approach. Perhaps until COVID is done circulating, you continue with your mask-wearing policies, your sanitization policies, and continue with social distancing within the store environment or within the workplace,” she says. “Those are things that people are already used to doing. They don’t like them, but they’re used to it and it would be, I would think, a far less controversial stance, which would again get you nearly all of the way there.”
Chevalier also points out a key unanswered question about the vaccines themselves. That is, does being vaccinated mean you can’t transmit the virus to other people? It’s not actually known yet if any if the available vaccines stop transmission of SARS-CoV-2, which is the virus itself. They’re only proven to significantly reduce cases of COVID-19, which is the disease caused by the virus.
“So, I think that is the crucial gating issue on this question, and only if you find that [vaccinated people] can’t transmit the virus do you have any basis at all for thinking about making the vaccine mandatory,” Chevalier adds.
So, as things stand, there are a lot of unanswered questions, but it seems unlikely that a vaccine mandate directed at employees and/or customers would withstand a legal challenge in Canadian courts. And so, practically speaking, attempting it is likely not worth the hassle or controversy it would cause to any retail business owner. But these are still uncharted waters. Both Chevalier and Mallough say they and their colleagues are keeping a close eye on this issue as it unfolds. They both say that if a vaccine mandate were to be implemented and upheld by a court, it’s likely to come from a high-risk sector, such as healthcare, long-term care, or even warehouses and manufacturing where COVID-19 outbreaks have occurred.
“Ultimately, and something we’ve been asking governments this whole time, is how much of a concern is retail as an activity when it comes to COVID? Is this something that retailers, based on the data, need to be concerned about?” says Mallough. “To date, it’s not something that we’ve seen as having been an issue, but governments across the country have not been great about really parsing out that data and sharing it. Rather, they include retail in blanket lockdowns, in our opinion, more to send a message to the public and say, ‘Take this seriously, we’re closing stores,’ as opposed to, ‘We’re closing stores because you’re likely to catch something there.’”