End of health restrictions to bring tricky decisions about customer privacy and staff policies

With the promised end of vaccine passports and restrictions in Alberta, businesses will face difficult decisions as they decide how to operate without the backing of public health orders.

Premier Jason Kenney expressed optimism Tuesday that the province would relax some public health measures by the end of this month, starting with the restrictions exemption program.  

A statement from the United Conservative caucus chair Nathan Neudorf on Wednesday indicated an even more immediate end — "likely within days, starting with the REP."

Businesses may choose to keep certain measures in place but it is unlikely they will have the leeway to implement their own vaccine passport system.

"I would suggest that they get very good legal help on that one because they'll likely lose," said Richard Powers, a business professor at the University of Toronto's Rotman School of Management.

It comes down to reasonableness, he said. Businesses might implement other measures — like masking — that can be argued as a safety measure.

"We've talked previously about 'no shirt, no shoes, you can't come into a restaurant.' It's similar — those are rules that the business proprietor puts in place to protect the comfort of other patrons or their staff."

Without the backing of public health orders, Powers said asking for something like proof of vaccination would become a privacy issue that businesses do not have the right to ask about.

Even a masking policy could become tricky if someone were to say they have an exemption. Privacy issues mean businesses can't ask to see the exemption.

"Do you just let them continue or do you ask them to leave?" Powers said.

"Those are the types of issues that are going to confront shop owners."

Employee requirements

The restrictions exemption program does not explicitly require employees to be vaccinated but various parts of the public and private sector across Canada have implemented their own mandates.

Businesses may want to re-examine those employee policies as governments lift public health orders.

"It's certainly a signal that they believe the risk has subsided based on transmission in the community and where the rubber's hitting the road in hospitals," said employment lawyer Dan Bokenfohr. 

Public health measures have mostly been a one-size-fits-all approach, Bokenfohr said. Going forward employers will need to determine what's reasonable based on specific conditions like whether work is in tight quarters or a health-care setting.

"The onus would be to be able to justify or explain why heightened or more restrictive measures are necessary and reasonable," he said.

Wayne MacKay, professor emeritus of law at the Dalhousie Schulich School of Law, said jurisdiction will also be a point of consideration: what holds true in Alberta may not apply to Nova Scotia.

Whether a work environment is unionized will also be a factor. MacKay said unionized workforces may have collective agreements that would make it more difficult to uphold mandates if public health orders are rescinded.

"The kinds of things anyone can do, public or private, when there's a public health emergency or a pandemic, is a lot more extensive than when there is not."