Vaccine mandates and proof of vaccination

Key information
  • The Government of Alberta has implemented a policy that permits certain businesses to ask customers for proof of vaccination, a negative COVID-19 test, or a valid medical exemption. The requirements from the government can be found here. Albertans can print or download proof of their personal vaccination status at albertavaccinerecord.ca.

  • Certain businesses, entities, and events are not included in the above program and instead have been instructed to follow other mandatory measures, such as capacity limits for retail stores and malls. In addition, some organizations have begun to implement their own mandatory vaccine policies for employees and service users.

  • Employers, service providers, or landlords have the duty to accommodate a person with a disability or another relevant protected ground, such as religious beliefs, that supports that the person cannot be vaccinated.

  • The Commission cannot address claims of rights violations on the grounds of personal opinion or political beliefs.

  • A business may use other methods of accommodating a person who is not vaccinated. For instance, rather than permitting them to physically enter the store, offering curbside pickup would also meet a business’s human rights responsibilities.

  • People may feel that COVID-19 restrictions violate their rights to bodily integrity, personal agency, and privacy. However, the balancing of health and safety pressures during a pandemic overrides certain rights, for a time, in the interest of protecting the general public from COVID-19.

  • A person making a human rights complaint on the ground of mental disability or physical disability will need to provide medical information to confirm they have a disability that prevents them from being vaccinated for COVID-19. A complaint based on the ground of religious belief must be supported by a sincerely held belief that is connected to a person’s faith.
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Introduction
The Alberta Human Rights Commission has been receiving a high volume of requests for information about the government’s public health requirements related to vaccination, proof of vaccination requirements, and masking requirements. This statement is intended to clarify when and how the Alberta Human Rights Act may apply to these public health measures. This statement is not intended as legal advice, nor is it a statement about how a Tribunal may determine any particular complaint. Rather, it is intended to provide a basic understanding of the implications of the public health requirements as they relate to human rights, and the possible ways the Act may affect individuals’ rights. Contact a lawyer for legal advice.

It is important to remember that the current COVID-19 pandemic, and government public health requirements are novel events. While human rights legislation in Alberta and elsewhere are designed to prevent discrimination on certain grounds, such as disability and religious beliefs, the interpretation and application of human rights laws in the present circumstances of a public health emergency is evolving.

Current Government of Alberta public health protocols

As of September 20, 2021, the Government of Alberta implemented a policy that permits certain businesses to ask customers for proof of vaccination, a negative COVID-19 test, or a valid medical exemption. The requirements from the government can be found here. A municipality may also have its own vaccination-related policies.

Certain businesses, entities, and events are not included in the above program and instead have been instructed to follow other mandatory measures, such as capacity limits for retail stores and malls. In addition, some organizations have implemented their own mandatory vaccine policies for employees and service users. Businesses may choose to follow more strict rules than are outlined in the provincial or municipal policies.
The Alberta Human Rights Act protects people in Alberta against discrimination based on a list of protected grounds, such as disability and religious belief. Service providers, employers, and landlords have a duty to accommodate a person who has a medical exemption prohibiting them from getting a vaccination, but the Act does not have a provision that protects a person’s personal preference not to get vaccinated, even where that preference is based on health concerns or political beliefs. The duty to accommodate only arises when, for instance, a health concern rises to the level of supporting a valid medical exemption. In addition, only religious beliefs that are sincerely held and connected to a faith must be accommodated in the areas protected under the Act, such as employment, services, or tenancy.

It is understandable that some people might feel confused, pressured, and resistant to getting vaccinated. 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.

The Commission is receiving numerous inquiries and complaints from individuals who believe the public health requirements violate rights under the Canadian Charter of Rights and Freedoms, and international human rights covenants. The Commission welcomes all inquiries from individuals who seek information about human rights. However, it must be remembered that the Alberta Human Rights Act only addresses discrimination in certain areas (like employment, goods and services, and tenancy) and on certain grounds (such as disability and religious beliefs). The Commission cannot address claims of rights violations under the Charter or on the grounds of, for example, personal opinion or political beliefs.

Vaccination policies

Getting a COVID-19 vaccination is voluntary. However, 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. For example, a business does not necessarily have to accommodate a person who is not vaccinated by permitting them to physically enter the business, office, or establishment. Other methods of accommodation, such as curbside pickup, would also meet a business’s human rights responsibilities.

During a health crisis such as a pandemic, the rights of those who are unvaccinated, due to a disability or other protected ground, must be balanced with the health and safety of the general public. Using an accommodation, such as online shopping, is one means to satisfy that balance.
Medical tests

Some employers or service providers might decide to require medical testing, such as taking a temperature or requiring employees or service users to regularly submit to rapid COVID-19 testing. In any medical testing, employers, service providers, and landlords should only seek information from medical testing that is reasonably necessary to confirm whether employees or service recipients are fit to work or receive services, or whether they require accommodation. Information about pre-existing or other disabilities should be excluded.

A positive COVID-19 test result must not lead to automatic negative consequences, such as employee discipline or termination, complete denial of service, or eviction from housing. Employers, service providers, and landlords have a duty to accommodate people with COVID-19. For example, employers are required to accommodate the absence from work of individuals with COVID-19 and, where possible, service providers must consider alternate ways to provide their services, such as offering delivery.

Duty to accommodate medical exemptions

Some people cannot get a vaccine because of a medical or other disability-related reason. Businesses that would otherwise require a vaccine have a duty to accommodate people who have a medical exemption. Practically, this means that businesses must offer other options to serve these customers, including curbside pickup and online shopping.

Employers must also accommodate employees who may not be able to comply with a vaccination requirement. For example, an employer may accept a negative PCR test or accommodate an employee by permitting them to work from home. In each case, an employee must establish a valid medical or other human rights-related reason that they can not comply with a valid workplace requirement.
Medical exemptions

The Government of Alberta has outlined that a valid medical exemption will include a statement that there is a medical reason for not being vaccinated against COVID-19 and the letter will outline the time period that the exemption is valid. The medical exemption must be an original letter from a physician or nurse practitioner, which includes: the exempt person’s name that matches their identification, plus the medical professional’s name, contact information, registration number and signature. This letter can be used to enter any business that has implemented the government’s program to protect against COVID-19. Other organizations who are not part of the government’s COVID-19 protocol, but have decided to ask for vaccination status, may also use the medical exemption letter to permit entry, but they do not necessarily have to choose this form of accommodation. It is also permissible, given the health and safety risks, for these organizations to fulfill their duty to accommodate by offering other options to customers, such as online shopping, or for employers to allow an employee to work from home.

Barriers to getting vaccines or providing exemptions

It must be recognized that some people, even though they make their best efforts to get vaccinated or tested for COVID-19, will experience barriers to these services. People in rural areas may have difficulty getting transportation to a testing or vaccination site, seniors may need the assistance of a caregiver to attend an appointment, some people might not have internet access to make an appointment or download proof of vaccination, and those who must work multiple jobs to make ends meet may find it difficult to find time for a vaccination or testing appointment. The cost of a private PCR test will exclude many people who cannot afford to be tested. In addition, there will be people who have had traumatic experiences in previous medical interventions, experienced discrimination in accessing health services, or who distrust the vaccination or testing regimes for whatever reason. Recognizing that people will have issues with accessing services to get vaccinated or tested will assist in compassionately resolving these issues.
 
Timing of the vaccination mandate

Proof of vaccine and testing mandates have been implemented because of public health guidance in Alberta, and worldwide, indicating that the health and safety of the general public must be protected. People may feel these restrictions violate their rights to bodily integrity, personal agency and privacy. This is entirely understandable.

Even though the rules are addressing a public health emergency, human rights commissions in Canada have noted that such restrictions should address current pandemic conditions, and therefore should be reviewed and updated regularly to ensure they are not over-reaching the moment. While such protections are justified in a pandemic, as the case numbers fall and the province and the country move away from the health emergency, governments, employers and private businesses will need to re-evaluate their policies.

Privacy

While businesses in the coming months may be asking for proof of vaccination, staff should be trained to protect people’s private information. When collecting patrons’ vaccination information, service providers must not share that information with anyone else. Employers who collect and keep the information on file must put safeguards in place for how that information is stored and shared. Questions about the collection and retention of information can be directed to the Office of the Information and Privacy Commission.

Enforcement

Businesses and event organizers are responsible for ensuring that the provincial proof of vaccination, testing, or medical exemption is being followed, as outlined in CMOH Order 42-2021 and summarized here. Fines can be charged to participating operators who are not complying with these requirements. Individuals who violate public health orders can also be fined.

A person’s human rights could be effected if the implementation of fines caused a disproportionate impact on someone from a marginalized or vulnerable community. Service providers must ensure that they implement policies equally, making sure that racialized communities, Indigenous people, 2SLGBTQ+ communities, those with mental health issues, and other visible minorities are not targeted with harsher penalties.

Making a human rights complaint about vaccines

The Commission may accept a complaint when someone has a disability or religious belief and they allege that there was discrimination in employment, services, or tenancy.

Early in the complaint process, a person making a human rights complaint on the ground of mental disability or physical disability will need to provide medical information to confirm they have a disability that prevents them from being vaccinated for COVID-19.

Someone who wants to make a complaint on the ground of religious beliefs will need to support that their belief that they cannot be vaccinated is sincerely held and connected to their faith.

Next steps after a complaint is accepted

The party that the complaint is against (the Respondent) will have an opportunity to provide a response to an accepted complaint. They may provide information about what accommodations were offered and available. They will also be able to provide information explaining why they could not accommodate employees, service recipients, or tenants who are unable to be vaccinated, including why it would be an undue hardship to do so. It is important to note that hardships, such as concerns about safety, must be real and tangible, not just perceived.

Contacting the Commission

The Commission requests that persons seeking information, advice, and services engage in a respectful way. We understand that the current environment can be frustrating, confusing, and engender high emotions. However, the Commission expects all persons interacting with Commission staff and members to be civil and respectful. We reserve the right to terminate any communication that does not adhere to these expectations.

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Disclaimer: This information does not constitute legal advice. It is provided only for information purposes, and does not suggest what, if any, decision might be made by a Human Rights Tribunal in any specific complaint.

 
Revised: October 8, 2021

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