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A customer has her COVID-19 QR code scanned by Jonathan Gagne, manager of Orangetheory Fitness in Montreal, on Sept. 1.Graham Hughes/The Canadian Press

A convenient, digital vaccine passport system – coupled with greater clarity on its legality – could persuade many of the country’s business owners to pursue a companywide vaccine mandate, especially if it can help their community avoid further lockdowns and restrictions.

Canadian business owners generally support the idea of a vaccine mandate for their staff, but are hesitant to implement one because of a range of unanswered questions regarding its legal implications and practical application. A digitized vaccine passport system would go a long way in solving the latter, but widespread employer vaccine mandates are unlikely to arrive before greater legal clarity is provided.

According to a recent survey conducted by KPMG, 62 per cent of Canadian small and medium-sized business owners plan to make COVID-19 vaccines mandatory for their staff, and 84 per cent support vaccine passports for certain jobs and location. Furthermore, 84 per cent of respondents believe vaccines will help the country avoid further lockdowns.

Another survey conducted by the Canadian Federation of Independent Businesses (CFIB), however, found that only 48 per cent of its more than 95,000 member businesses support employer vaccine mandates. That number jumps to 55 per cent if such mandates were offered as an alternative to further lockdowns.

“There’s a large group that oppose it, full stop, but there are more of our members that have concerns on a practical perspective as this buck gets passed to them,” says Dan Kelly, the president of CFIB. “There’s lots of potential legal landmines one might [step on] if one were to go down this road – it’s not at all the easy process some think it might be – and many employers that have done this are potentially one human-rights complaint away from bankrupting their business.”

Mr. Kelly explains that business owners fear legal repercussions if they terminate an employee who refuses to get vaccinated after implementing a vaccine mandate. The Ontario Human Rights Commission (OHCR), for example, protects workers against discrimination based on creed or disability, and requires employers to provide reasonable accommodations “to ensure that persons who are otherwise fit to work are not unfairly excluded.”

A recent statement released by the OHRC explicitly states that a personal preference against vaccines or masks alone is not protected under the code, but Mr. Kelly warns small businesses don’t have the means to engage in a legal battle right now. He says many are already reeling from the lockdowns and restrictions of the past 19 months and are now grappling with a labour shortage, which Mr. Kelly says could be exacerbated by a vaccine mandate.

“There’s 20 per cent of the working population [that’s unvaccinated] that they would not be able to hire in this situation, or would have to dismiss if these things become mandatory,” he says.

Mr. Kelly says he supports COVID-19 vaccination in general, but is not advising CFIB members to pursue a vaccine mandate for their staff at this time, and doesn’t believe a vaccine passport system alone would be enough to change his perspective.

Norm Keith, a partner with KPMG Law LLP’s employment and labour practice, however, argues that a vaccine passport actually protects businesses against fines and lawsuits related to exposure or outbreaks in the workplace. In fact, employers could face fines of up to $1.5 million for failing to uphold provincially mandated occupational health and safety standards, including the requirement to provide a safe working environment.

“Your health and safety priority is reflected in the very severe fines, and even jail time, for owners of businesses who you don’t take every reasonable precaution [to protect workers],” he says. “A $1.5-million fine under the Occupational Health And Safety Act is a lot higher risk than an employee suing you or going to the Human Rights Commission.”

Mr. Keith adds that the Canadian Labour Code also requires businesses to provide a working environment free of health and safety hazards. As a result, he believes that businesses put themselves at greater legal risk if they don’t implement a vaccine mandate, so long as they provide reasonable exemptions when necessary.

“The technology [of a digital vaccine passport] is great, but you’ve got to provide legal certainty as well that’s black and white,” says Mark Agnew, the senior vice-president of policy and government relations for the Canadian Chamber of Commerce. “If there’s provincial labour law implications as well as federal Charter implications, you can’t have just one level of government weighing in on this, it needs to be both of them.”

Mr. Agnew says the Government of Canada’s decision last month to require vaccinations among federal employees and federally regulated transportation providers will serve as a test case for broader vaccine mandates in the private sector.

While he believes a convenient and reliable vaccine passport system will encourage more employers to mandate COVID-19 vaccines for their staff, it needs to be coupled with clear legal frameworks to encourage widespread adoption.

“People want legal certainty, and they want something that can be easily implemented,” he says. “The technology is a critical component, but there’s still the lingering issue of, ‘what can or can’t I demand of my customers and employees?’”

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