With the implementation of more and more mandatory vaccination policies in the workplace, many employers and employees are questioning who is exempt from such polices under the B.C. Human Rights Code.
The Human Rights Code protects employees from unreasonable discrimination in their employment when the discrimination relates to one of the enumerated protected grounds in the Code. Under the Human Rights Code, employees who cannot be vaccinated because of a protected ground must be accommodated by their employer, but only to such extent that does not cause undue hardship to the employer.
As a starting point, we know that an employee who chooses not to be vaccinated as a matter of personal preference does not have grounds for a human rights complaint against an employer implementing a mandatory vaccination policy. The Office of the Human Rights Commission indicated that relevant protected grounds may include: physical or mental disability, place of origin, religion, and family status. For example, physical disability may be applicable in situations where an employee has a documented medical condition that does not allow them to be vaccinated.
This brings us to the question of whether an employee’s genuinely held political belief opposing government rules regarding vaccination is protected under the Human Rights Code in the workplace context. The protected ground of “political belief” in the Human Rights Code includes “public discourse on matters of public interest which involves or would require action at a governmental level.”
The B.C. Human Rights Tribunal (“BCHRT”) responded to this question in the negative, but left the door open for future debate. In the recent screening decision Complainant obo Class of Persons v John Horgan, 2021 BCHRT 120 (Horgan), the BCHRT dismissed a complaint alleging that the provincial government’s proof-of-vaccination requirements discriminated on the basis of political belief in the workplace context. The BCHRT wrote:
I accept that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. In saying this, however, I stress that protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules. Rather, it protects a person from adverse impacts in their employment based on their beliefs. For example, in [Bratzer v Victoria Police Department, 2016 BCHRT 50 (Bratzer)], the Tribunal found that the employer had discriminated against the complainant because of his advocacy in connection with drug laws. He still had to follow those laws despite his opposition to them, but his opposition to them could not be the basis for adverse treatment in his employment, subject to a bona fide occupational requirement.
The BCHRT dismissed the complaint because the complainant failed to provide any facts related to an actual adverse impact experienced by the proposed class in their employment. As a result, it remains to be seen whether employees refusing to follow mandatory vaccination policies in the workplace on the basis of a political belief, and who experience the adverse treatment as a result, might file a successful human rights complaint.
Drawing from a nearby jurisdiction, although not determinative of the issue, the Manitoba Human Rights Commission published a COVID-19 Factsheet, which provides guidance on whether an employer must accommodate an employee who cannot be vaccinated for reasons related to political belief. The Manitoba Human Rights Commission stated the following:
The Commission is mindful that there may be a circumstance where an individual, for reasons related to a political belief, cannot be vaccinated. The Commission’s Policy on “Political Belief” states that a political belief, association or activity encompasses some form of focused discourse about convictions that are linked to the political organization, political functioning or the political nature of society. This does not include beliefs or concerns about discrete social, environmental, medical or other such issues. This is also not the same as a broad right to freedom of expression to openly debate any issue that affects the public well being. It is also important to note that protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules.
When accommodating a person on the basis of a political belief, the focus is on whether the belief is freely and sincerely held, and connected to the political nature, organization and functioning of society. The individual requesting accommodation will be required to show a link between their political belief [and] the reason they cannot be vaccinated.
Takeaways for Employers
Given the lack of direction provided by the BCHRT in the Horgan decision, an employer should address all potential human rights implications when designing a mandatory vaccination policy rather than waiting for issues to arise after the policy is implemented. This includes ensuring policies are evidence-based, aligned with current public health guidance subject to regular review, and tailored to the specific context in which the employer operates.
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By Makenzie Johnston