Vaccines and your business: what you need to know

After months of lockdowns and restrictions, the vast majority of Canada’s small businesses are finally open to the public once again. This is good news, and we are working hard to ensure governments create “Stay Open” strategies to face any further waves or variants without resorting to lockdowns or capacity restrictions on businesses.

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Vaccine passports are now in place in all provinces

One strategy that is being used across the country is vaccine “passports,” or proof of vaccination policies.

• National: As of October 30, travellers must be fully vaccinated to board a plane, train, or cruise ship for travel within Canada. There is a temporary grace period until November 30 where travellers can show a negative COVID-19 test instead. Travellers must also show proof of vaccination when leaving Canada. Learn more here.
• Alberta: As of September 20, certain businesses and events must either implement the Restrictions Exemption Program - which requires proof of vaccination or a negative test result plus mandatory masking - to continue operation as usual, or comply with the latest public health restrictions. Learn more here.
• British Columbia: As of October 24, individuals must be fully vaccinated to access certain indoor activities and businesses, including concerts, sporting events, dining, gyms, workshops, and weddings. Learn more here, including how to download the BC Vaccine Card Verifier app or verify proof visually.
• Manitoba: Manitoba residents are able to download their immunization card to access certain non-essential settings based on current public health orders. Learn more here, including how to download the Manitoba Immunization Verifier app.
• New Brunswick: As of September 22, certain New Brunswick businesses must require proof of vaccination from those 12 and over to access certain businesses, services, and events, such as indoor and outdoor dining, movie theatres, nightclubs, and group exercise facilities. Learn more here.
• Newfoundland and Labrador: As of October 22, mandatory proof of vaccination in the form of a QR code is required to access non-essential businesses and venues. Learn more here, including how to download the NLVaxVerify app for affected businesses.
• Nova Scotia: As of October 4, Nova Scotia requires proof of vaccination from those 12 and over who wish to participate in non-essential activities, such as going to restaurants, bars, concerts, and fitness facilities. Learn more here.
• Ontario: As of September 22, Ontario implemented mandatory proof of vaccination at certain businesses. This includes indoor dining, nightclubs, sporting events, gyms, meeting spaces and casinos. See the full list of affected businesses. Consumers can show their vaccine receipt or enhanced vaccine certificate (QR code). Visit our FAQ page to learn more, including how to download the Verify Ontario app for businesses.
• Prince Edward Island: As of October 5, PEI implemented the Vax Pass Program, mandating those 12 and over to provide proof of vaccination to access certain businesses, services, and events. Learn more here.
• Quebec: As of September 1, Quebec mandated proof of vaccination for those 13 and over to access certain places and non-essential activities, including bars, restaurants, and gyms. Learn more here.
• Saskatchewan: As of October 1, Saskatchewan implemented proof of vaccination or a negative COVID-19 test as a requirement to access some businesses, establishments, and event venues. Learn more here about affected businesses, exemptions, and how to download the SK Vax Verified app.

While some business owners may welcome the use of a vaccine credential with employees and/or customers as an alternative to lockdowns, CFIB has several significant concerns and wants you to understand the risks. There are serious privacy and human rights considerations involved, and a business could face an expensive legal process just as they are getting on their on their feet. We are also concerned about the ability of small businesses to effectively implement a process to check credentials. For example, asking a young retail clerk or restaurant host to ask about someone’s health records would put them in an incredibly delicate position.

Can a business require employees or customers to get vaccinated?

CFIB has worked with a law firm to create a vaccine policy template that can help business owners talk about vaccines with their employees. We do not recommend business owners impose a requirement that employees or its customers be vaccinated.

We are starting to see governments mandate vaccines for certain sectors. However, these announcements do not change the legal risks for small businesses, who should still tread carefully if considering requiring staff or customers to be vaccinated.

CFIB is on the board of the POST Promise (People Outside Safely Together), which urges businesses to take a pledge to do five things to protect employees and staff from COVID. We prefer voluntary actions like POST over mandatory approaches.

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Can I mandate that my employees get vaccinated?

Please note that mandating vaccination in your workplace could expose your business to some important legal risks.

Although governments and some larger employers have begun mandating vaccination for their employees, there remain many legal risks for small businesses, who should tread carefully if considering requiring staff or customers to be vaccinated. Legal advice is strongly recommended if you wish to make vaccination mandatory for your employees.

The topic of vaccination in the workplace raises four main issues that must be carefully considered: Health & Safety, Human Rights, Privacy and Employment and Labour Relations. The debate has pitted these considerations against each other. Until there is an actual legal precedent set, it is difficult to know how the courts will balance them.

CFIB’s template Vaccination Policy can help the discussion in the workplace; however, it does not suggest making vaccinations mandatory. We recommend seeking individual legal advice if you wish to implement a mandatory vaccination policy.

Governments and large corporations are mandating their employees get vaccinated – why can’t I?

Some of these businesses are unionized or federally regulated. That means they might have a contractual or even legislative backing to impose these rules that other businesses do not have.

From a legal standpoint, the debate as to whether employers can mandate their employees get vaccinated has not yet been settled. This means it’s possible that the vaccination mandate of these employers is illegal. Governments and large corporations have legal teams and the financial stability to fight any legal claim that may be brought by an employee – things most small businesses just do not have.

Similarly, the requirement by certain large events for attendees to be vaccinated may not be legally valid, but until a case is brought before the courts and a precedent is set, it is impossible to know where the decision will fall.

Can I ask my employees if they have been vaccinated?

Vaccination is health information, and as such an employee is not obligated to reveal their vaccination status. You should first consider why you want to ask the question, and if you feel you have a bona fide reason for asking, we recommend using our vaccination policy template to open the conversation. Opening the door this way will allow you to gauge your employees’ comfort level in discussing the vaccine – and will give you an answer of sorts. If an employee reveals they are not vaccinated or expresses that they do not wish to reveal their vaccination status, this will indicate you need to keep stringent health and safety measures in the workplace.

If your province’s vaccine passport mandate requires employees to be vaccinated, then you will need to check their proof of vaccine. It is a best practice not to store vaccination status information, but simply to note that you have checked.

Can I require my non-vaccinated employees to wear a mask?

No. Similar to dress codes, which cannot be discriminatory, a mask policy cannot single out any employees. You can require all employees to wear a mask, or none, but you cannot limit it to only non-vaccinated employees. Doing so would reveal an employee’s vaccination status, which is something an employer cannot do, and an employee is not obligated to do.

If you have even just one employee not vaccinated, or an employee who does not want to divulge their vaccination status, it is recommended to maintain a mandatory mask policy in your workplace and apply it to everyone, including customers.

Alternatively, the only other option to avoid highlighting just one segment of your staff is to include the non-vaccinated employees with the ones who don’t want to disclose. But this would only work with a larger group of employees.

Can I advertise that my staff is 100% vaccinated?

There are significant privacy and human rights issues at play and, to date, none of this has been tested in court. Some businesses, for all the right reasons, may wish to promote that its employees are fully vaccinated. But unless you have gathered express consent from everyone and ensured they understand that this will be made public, you could violate your employees’ privacy.  Likewise, an employee could take a case to a Human Rights Tribunal if they were not able to work due to a vaccination requirement. Even if the business ultimately won, they could face massive legal costs

Can I require that new hires be vaccinated?

Please note that mandating vaccination in your workplace could expose your business to some important legal risks.

Although governments and some larger employers have begun mandating vaccination for their employees, there remain many legal risks for small businesses, who should tread carefully if considering requiring staff to be vaccinated. Legal advice is strongly recommended if you wish to make vaccination mandatory for your employees.

If a candidate reveals that they have not been vaccinated, and you choose not to hire them, you could leave yourself open to a Human Rights complaint of discrimination. The candidate may not be vaccinated due to health or religious reasons and denying them employment in that case would be contrary to Human Rights laws.

Alternatively, you can talk about your internal policies with candidates. Here you would list several of your internal policies such as attendance, code of conduct, social media policy, etc. and include your vaccination policy. We don’t suggest you ask if they are vaccinated, but you could ask if they have any concerns with any of your policies. However, you can’t decide to not hire someone solely based on the fact that they are not vaccinated.

The topic of vaccination in the workplace raises four main issues that must be carefully considered: Health & Safety, Human Rights, Privacy and Employment and Labour Relations. The debate has pitted these considerations against each other. Until there is an actual legal precedent set, it is difficult to know how the courts will balance them.

We recommend seeking individual legal advice if you wish to implement a mandatory vaccination policy.

What do I do if the government mandates my employees must be vaccinated?

Some provinces, such as Newfoundland and Labrador, have mandated that employees must show proof of vaccination if they work in a business where customers are required to show proof of vaccination.

In such a scenario you must follow the requirements laid out by government or risk fines/having your business shut down.

Can I require customers to be vaccinated?

Some provinces have introduced vaccine passports which must be presented to access certain businesses and services. If your business is mandated by the government to check a customer’s vaccine passport, then you must follow those rules. See the top of the page for more information on the requirements in your province.

If your business is exempt from checking a customer’s vaccine status, but wishes to do so anyway, it’s important to note there are significant privacy and human rights issues at play, and to date, none of this has been tested in court. A customer could take a case to the Human Rights Tribunal if they were refused service based on their vaccination status. Even if the business ultimately won, you could face massive costs.

What do I do if a customer asks if my staff is fully vaccinated?

Customers are not entitled to the private health information of your staff, so you would need to advise the customer that you cannot share that information. You can, however, highlight all the measures you have put in place to keep staff and customers safe, for example:

• Requiring masks
• increased cleaning and sanitation
• maintaining physical distancing
• online ordering
• offering curbside pick-up/delivery