Manitoba businesses fear provincial wage subsidies tied to vaccinations may be discriminatory

Some Manitoba businesses are balking at the prospect of screening prospective employees on their vaccine status in order to qualify for a provincial wage subsidy.

Jocelyn Burzuik — who owns Sundance Construction, which operates out of Manitoba's Interlake region — believes the decision to get vaccinated is a personal choice, and should not be made by an employer.

"It is not my desire to discriminate against anybody. I don't even want to ask the question, because it's something that is private medical information. And unless I absolutely need to know, I really shouldn't know. I shouldn't be putting myself into that situation," she said.

Manitoba's Healthy Hire program offers local businesses up to $50,000 to help pay the wages of newly hired or rehired employees who have either received a COVID-19 vaccine or who pledge to get one.

Burzuik believes it creates liability issues for employers, particularly if they violate a person's Charter rights by hiring a vaccinated person over someone who can't get vaccinated for medical, religious or accessibility reasons. She says precautions are taken on work sites to ensure safety, so regardless of the person's choice on vaccines, people are not at risk.

The Canadian Federation of Independent Business, which represents about 4,000 small businesses in Manitoba, says it has fielded dozens of questions and concerns about the Healthy Hire program since it was announced last week.

"I totally agree with a wage subsidy program under the Healthy Hire. I do not agree with the portion that says that we're going to incentivize the vaccinated over the unvaccinated. Not going there. I'll find a federal program that doesn't discriminate," said Burzuik.

Meant to promote healthy workplaces: Pallister

The $30-million Healthy Hire program covers 50 per cent of wages for a maximum of 10 employees at each business or organization, up to a maximum of $5,000 per employee, for employees hired between June 10 and Oct. 15.

For employers to qualify, employees or prospective employees must sign a form indicating they've received two doses of COVID-19 vaccine, or intend to get them both. Several businesses who were eligible told the CBC they were happy about the program and would be applying for it.

On Tuesday, Premier Brian Pallister had a simple message for business owners concerned about discrimination based on vaccinations.

"Don't apply for the program. It's as simple as that," he said.

Pallister said the purpose of it is to promote healthy workplaces and to encourage "that one person who isn't vaccinated to do so." 

"It's not too much to ask. It's $50,000 of taxpayers' hard-earned money that we're offering to businesses to help them get back on their feet. And if you're not willing to do that, then don't apply for the program," he said. 

'Very sensitive and personal medical issues'

But a labour and employment lawyer says the program is "problematic" and is cautioning employers against applying for it, as it may end up costing them more in the long run.

"It may be well-intentioned, but it's putting the employer, as a gatekeeper, in tough territory and it's setting up a temptation for certain employers to say, 'Well, not you, because I don't get the subsidy,' without asking, 'Why? Why not you?'" said Ken Dolinsky, a partner at Taylor McCaffrey LLP.

With some exceptions, Dolinsky says he generally advises employers to not ask about a person's vaccination status. Employees may volunteer the information and employers can encourage vaccination if it's medically safe, but he says "grilling your staff on whether they've been vaccinated is being treated as some pretty dangerous territory to get into."

Along with issues around medical privacy, Dolinsky warns if someone is treated differently for reasons that are protected under the Human Rights Code, such as having a medical reason for not getting the vaccine, there could be human rights complaints, legal trouble and/or reputation damage to the employer.

"It's similar, to me, to the employer sitting down with a prospective employee and saying, 'Well, are you planning on starting a family and when and how many kids do you want to have?' These are very sensitive and personal medical issues," he said.

He added the program appears to assist employers who have terminated or laid off staff, but not those who have kept staff on at lower levels throughout the pandemic, raising more questions about fairness. 

"I would likely be telling my clients that, until there's more clarity or possibly some kind of qualified immunity from complaints, if questions are asked in a certain way, that it may not be worth the hassle."

'Bad ethics and bad law': Schafer

Arthur Schafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba, calls the Healthy Hire program "bad ethics and bad law."

He said while the privacy of health information is a basic right, it's not absolute. Employers may be entitled to ask about vaccine status or mandate vaccines, but only if the job puts unvaccinated employees, customers, patients or others at risk of contracting COVID-19, and only if there is no other means of protecting them. 

"So if the job can be done from home, and you won't hire someone because they're not vaccinated, or you're going to ask them whether they're vaccinated, you can't appeal to public safety or the safety of your workers," he said.

"And you've got to make reasonable accommodations for people who can't be vaccinated or for who, for any of a number of reasons, won't be vaccinated."

Schafer said if there are other, "less coercive" ways of promoting safety in the workplace — such as masking, distancing and testing for COVID-19 — and workers can do their job without endangering others, it's a violation of their privacy to ask about their vaccine status. 

"You can't just go in like a blunderbuss and say, 'Well, you can't keep your job even though you're working from home and aren't in contact, because we can get extra money from the provincial government by hiring someone who's been vaccinated.' 

"It's such a straightforward and obvious violation of human rights."

Pallister said he's open to hearing of other ways to encourage unvaccinated workers to be vaccinated, but until then, the program stands. 

In a statement, a provincial spokesperson wrote "employers or any other organization should not be requesting an individual's proof of immunization or any other health-related records…as the information is protected under Manitoba's Health Information Act." The spokesperson added that more information will be released about Healthy Hire in early July.

Jocelyn Burzuik from the construction company said the idea of the program is still upsetting. 

"It upsets me enough that I'm willing to go on the record with my business, with my name, with my face, saying this is not right," she said. Come up with a program that doesn't discriminate and Manitobans will get on board."