Behind the decision by businesses to require proof of vaccination

EDMONTON -

An Edmonton restaurant is requiring patrons be double vaccinated in order to dine indoors, something experts say falls in a somewhat legal grey area.

Since the provincial mask mandate in Alberta lifted on July 1, business were left to decide whether patrons had to continue wearing masks inside or not.

One restaurant, Fleisch, has announced it will require customers to have two doses of a COVID-19 vaccine if they want to dine inside the restaurant.

Fleisch management declined to comment for this story, but in the announcement called the decision an "easy" one, noting, "Community > everything."

Please note that our patio DOES NOT require proof of vaccination and we will continue to offer takeout and delivery options too. If you have any questions or concerns regarding this policy, please email us.⁣📲
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— FLEISCH DELIKATESSEN (@FleischYeg) August 7, 2021

“If that’s their prerogative then, by all means, we support any business and their choice to do so,” said Ernie Tsu, the president of the Alberta Hospitality Association.

The decision on whether businesses can legally require proof of vaccination is a grey area, according to experts.

“It really depends on the type of business… it could be contrary to certain pieces of legislation and certain considerations that are in place,” said Lauren Chalaturnyk, an associate lawyer.

“Businesses do need to be quite careful that they’re balancing (health and safety) obligations with privacy and human rights considerations.”

Private businesses are able to decide who they provide services to and who they don’t, but they can’t discriminate on the basis of something protected in the Alberta Human Rights Act, according to Chalaturnyk.

Religion, physical and mental disabilities are covered in the act, things that might prevent someone from getting vaccinated.

“Human rights law requires that those businesses accommodate individuals who can’t get vaccinated due to, for example, health reasons,” said Dr. Lorian Hardcastle, an associate professor with the faculty of law at the University of Calgary.

“We don’t know, yet, what reasonable accommodation of those who cannot get vaccinated will look like.”

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The Human Rights Act doesn't protect people who simply don't want to get vaccinated, added to Hardcastle.

When the mask mandate ended on Canada Day, a provincial human rights tribunal issued guidance for businesses. Further guidance on businesses requiring proof of vaccination is something experts are hoping for.

“I hope we do see guidance, it is certainly possible that allowing people to dine outside over inside would be viewed as a reasonable accommodation,” said Hardcastle.

In addition to human rights concerns, there could also be privacy concerns depending on how information on proof of vaccination is taken.

“If a record is being provided, then you’re holding onto personal information, and it’s personal health information, which has some pretty stringent requirements attached to it in terms of how it’s collected, used, disclosed,” said Chalaturnyk.

If businesses require being shown a record of vaccination, but don’t record the information, “there isn’t that same risk of having those same records disclosed or having that data accessed,” according to Hardcastle.

If a business is found to be in violation of the Human Rights Act, there could be a financial impact.

“It’s very dependent on the impact on the complainant and the response that the business is able to give that would determine how significant that financial impact could be,” said Chalaturnyk.

“The Alberta Human Rights Commission can also issue some very unique remedies like requiring a business to put in a non-discrimination policy, or require their employees to do something akin to sensitivity training.”

The financial penalty can range from a couple thousand dollars to $25,000, added Chalaturnyk.

“We would recommend seeking out some legal advice to make sure that all of those considerations are being properly balanced before going down that path,” said Chalaturnyk.

“We’re really going to have to see the cases play out, and in some ways that’s what makes it hard to be those pioneering businesses passing these requirements,” said Hardcastle.

With files from CTV News Edmonton’s Ryan Harding