On February 8, 2022, the Government of Saskatchewan announced changes to a variety of COVID related public health orders, including setting an end date for its proof-of-vaccination/negative-test requirements and masking orders. Businesses should review the latest Public Health Orders issued by the Chief Medical Health Officer.
COVID-19, Vaccines, and the Code
During the COVID pandemic, The Saskatchewan Human Rights Code, 2018 (“the Code”) remains in full effect.
COVID as a disability:
Persons who have contracted COVID-19 could be considered to have a disability, as defined by the Code. As such, harassment, dismissal, or other arbitrary negative treatment of employees or customers who haveCOVID-19 may be discriminatory and prohibited under the Code. Differential treatment required by bona fide and reasonable public health and safety measures do not constitute discrimination under the Code.
The Code and Vaccines:
This document alerts businesses to potential human rights issues that may arise in their workplace relating to COVID-19 vaccination.
The Saskatchewan Human Rights Code, 2018 prohibits discrimination based on certain protected characteristics; those are:
- Race/perceived race or colour
- Place of origin, nationality, or ancestry
- Religion or creed
- Family or marital status
- Sexual orientation
- Gender identity
- Sex, including sexual harassment or pregnancy
- Disability (physical or mental)
- Receipt of public assistance
- Age (18 or more)
However, vaccines and vaccination policies are not, in themselves, matters of human rights. Only where employer vaccine policies intersect with a prohibited ground of discrimination (such as disability or religion) may the matter become subject to the Code.
Vaccination may be a part of many business and employer safety measures in response to the risks of COVID-19.
While vaccination policies may not violate the Code if implemented properly, other labour and employment laws may need to be considered. Businesses should consider obtaining legal advice.
Q1. As a business open to the public, can we continue to restrict access based on proof-of-vaccination (aka vaccine passport)?
Vaccines and vaccination policies are not, in themselves, matters of human rights. However, where a customer or client is precluded from complying with a proof-of-vaccination policy due to an existing disability, or where they have a sincere religious objection to receiving the vaccine, a business will have a duty to accommodate.
What type of accommodation is appropriate will depend on the type of businesses and the circumstances of its operation.
Q2. Does the province require my employees to receive the vaccine?
The latest public heath order does not require employees be vaccinated. However, some organizations, including the Government of Saskatchewan and Saskatchewan Health Authority, did implement a proof of vaccination policy for its employees.
Q3. As an Employer, am I permitted to require my employees to receive the vaccine?
Employers seeking to make vaccinations mandatory for all or some of their employees should consult with a lawyer.
Where mandatory vaccination policies are implemented, employers may be required to accommodate employees on the basis of disability or religion.
Q4. As an Employer or Business, if I proceed with mandatory vaccines or proof-of-vaccination, can my employees/customers pursue a human rights complaint against us?
Vaccines and vaccination policies are not, in themselves, matters of human rights. As such, mandatory vaccinations are unlikely to lead directly to human rights complaints.
However, where an employee or client is precluded from complying with a mandatory vaccine policy due to a disability, or where they have a sincere religious objection to receiving the vaccine, an a duty to accommodate discussion is triggered. In these cases, employees may be able to pursue a human rights complaint if reasonable accommodation is not offered.
Q5. As an employer, I’m not sure what information I can collect about my employee’s vaccination status?
Typically, an employer would not collect information about the vaccination status of their employees.
Where such information is collected, it constitutes personal medical information and must be collected and stored in a manner consistent with privacy legislation. However, this would not be a matter for consideration under the Code. For more information, contact the Saskatchewan Office of the Privacy Commissioner.