Can my business keep some protections in place, even after the Province lifts the public health order?

February 16, 2022

Byline: Steve Seiferling, Labour & Employment Lawyer

The Saskatchewan Chamber has recently conducted a survey of businesses, and the majority (59%) are in favour of lifting the proof of vaccine/negative test, and masking, requirements for businesses in Saskatchewan. The obvious question that comes up, for those businesses who don’t believe that the requirements should be lifted, is whether a business can keep restrictions in place when the Province no longer requires the restrictions, both with respect to workers, and with respect to customers and clients. When Premier Moe was asked about continued restrictions or protections for businesses, he said “ask your lawyer”. I guess that’s where I come in, since I am a labour and employment lawyer.

The answer to the question about whether an employer or business can continue restrictions, in true lawyer fashion, is “it depends”. I’ll break it down into two categories – employees and customers/clients – and provide some details. I’ll also end by talking about individual choice with respect to masking.

Employees 

The Saskatchewan Government created two sets of regulations that protected employers (public and private sector) who imposed policies on vaccination or negative testing. With respect to masking, employees are currently covered by the public health order on masking in indoor public spaces.

Let me start by saying that the option will fall to the business. If a business is seeking to keep restrictions in place, then, once the protections for employers are removed by government, each business will need to do an assessment of whether any restrictions can be continued in the workplace, based on the health and safety of employees, or the health and safety of the public. Some workplaces will likely be able to continue to require proof of vaccination, and masking, for their employees (ie: public health workplaces), while others likely do not have a health and safety concern that would be addressed by requiring proof of vaccination or masking (office spaces with little or no public access).

Effectively, the short answer for employees is that it will depend on the wishes of the employer, and the nature of the workplace.

As lawyers, we also generally field questions from businesses about whether there is a risk of a human rights, or privacy, complaint, from employees. What the courts in Canada have said on the issues of privacy and human rights is that, if the requirement is a legitimate (or bona fide) requirement for the workplace, then it can be implemented. Each business should therefore work with its human resources and legal professionals to look at whether any continued restrictions are a legitimate, or bona fide, requirement for the business.

One other item worth noting is that workplace injuries and illnesses are covered by workers compensation in Saskatchewan. If a worker is required to get the vaccination as a condition of employment, and suffers a negative reaction to the vaccination, then a workers compensation claim could be filed, on the basis that there was a workplace requirement. This could be an issue for WCB Saskatchewan to deal with in the coming months or years.

Customers and Clients

Customers and clients are in a slightly different position, since they are members of the public, and not employees of the business. A business, as a private entity operating on private property, can make the rules it wants to with respect to providing services to the public. Some rules are driven by law or regulation – for example, you need to be nineteen to purchase alcohol in Saskatchewan. Others are driven by business needs or choices, like restaurants or clubs that impose dress codes. In Saskatchewan, a business could continue to place restrictions on its clients or customers, so long as those restrictions apply equally to all customers or clients. A business could continue to require masking, even after it’s no longer required by the province, as a condition of service. A business could also continue to require proof of vaccination, or a negative test, in order to provide services.

The businesses in Saskatchewan will therefore have the option to continue to impose restrictions on customers and clients, and, so long as those restrictions are imposed equally, they will not likely be open to challenges. However, clientele and customers will also be able to choose whether or not to attend the establishments that continue with restrictions or protections, so continued restrictions could have an impact on business (which might be a positive or negative thing).

A number of businesses in Saskatchewan have said that masking will continue, even after the requirement is lifted, and that is a business by business choice.

The human rights and privacy question has also come up in the customer/client context, and the answer is that, so long as the policy is applied equally, there are very few challenges possible.

Individual Choices

I don’t think masks are going away anytime soon. I don’t mean the requirement to wear masks at public indoor spaces. I mean the choice to wear masks. It is likely that we will continue to see individuals who continue to mask at public places, like grocery stores, sporting events, airports, and other locations, even when the requirement for masking is lifted. This is an individual’s choice, and should be respected. Just like a business has a choice to continue with a policy, even when it is not required, an individual can choose to mask, even if it’s not required.

Hopefully this addresses at least some of the questions and concerns that are coming up for businesses in Saskatchewan. If you have any questions, feel free to reach out to Sieferling Law.