Can a business ban unvaccinated customers? Here's what we know

WATCH: France and Greece announce mandatory vaccinations for health workers. Will Canada do the same?

As more Canadians get vaccinated against COVID-19 and society starts its climb back to normal, businesses and institutions are facing a difficult question: are they going to require people to be fully vaccinated before they can walk through the door?

It’s an issue that has provoked heated debate — and some very different stances across the board. Now, experts are warning there could be some legal and ethical implications at play for businesses navigating this sticky situation.

“I think we’re trying to fix a problem that we don’t fully understand just yet,” said Kerry Bowman, a bioethicist with University of Toronto, when asked about businesses mandating vaccinations.

“My position with this is it’s really premature to do this, and I hope we won’t need it at all.”

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Still, such concerns haven’t stopped businesses and institutions from exploring the murky terrain of mandating vaccinations, many of them citing health and safety concerns from employees and clients alike.

Here’s what we know about the situation so far.

What are businesses doing?

In the education sector, multiple universities have dipped their toes in the waters of mandatory vaccination. Some campuses are requiring students to be fully vaccinated before moving into a university residence. One institution, Seneca College, took this one step further — requiring any eligible students stepping foot on campus to be vaccinated.

Those choosing not to get a vaccine can continue to pursue their studies online.

“We’re not forcing anybody, actually. We actually not making vaccines mandatory. We’re saying if you want to come on campus, you must be vaccinated,” David Agnew, the president of Seneca College, told Global News on Tuesday.

Other businesses are also exploring the idea of requiring their patrons to be vaccinated. Filmores, a Toronto-based gentleman’s club, is asking its customers to be fully inoculated against COVID-19 before walking into the establishment.

“I have a moral and legal responsibility to provide the safest workplace possible,” said Kaspar Cameron, manager of Filmores.

“We have no intention of infringing on anyone’s privacy. I realize that it’s a very fine line to balance the two. And we feel that the steps we have taken (are) in the best interest of our staff, our entertainers and our customers.”

He said he took the step after multiple employees voiced concerns ahead of reopening to the public.

“As we were getting closer to realizing that Stage 3 is actually going to be a reality, we started reaching out to our entertainers and staff. Their number one concern was safety,” Cameron said.

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He said he was hoping that the province would come up with some kind of a vaccine passport system, one that would make it easy to know who is vaccinated and lay down the limitations for those who aren’t. But with reopening looming and no vaccine passport in sight, he had to make a decision on his own.

“Our dancers, staff, management are all vaccinated,” Cameron said.

“We were hoping for a vaccine passport, (but that) didn’t become available. So we decided that we’re going to require all patrons to be vaccinated as well.”

The reaction from the public has been overwhelmingly supportive, Cameron said, but he has gotten a few angry emails. To him, however, it’s better than the alternative.

“They’re alive. They’re healthy. Let them punch those keyboards. Go nuts. I’m OK with that. I just don’t want to be on the flip side of it, where we could somehow be responsible for anybody getting sick or God forbid, you know, get COVID and pass away,” Cameron said.

“I don’t want to be responsible for that.”

Cameron isn’t alone in this stance. He said the owners of all downtown Toronto adult entertainment clubs got together and made a deal — they’re all going to play by the same rules, and none of them are allowing unvaccinated customers into their establishments.

“This is every single adult entertainment club in the downtown core. We all came to a consensus,” he said.

“If anybody was on the fence … and they’ve already done the research, of course, and they feel comfortable getting (vaccinated), this might be an extra incentive for them to get it. So that they could go out and enjoy themselves.”

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In sharp contrast to Cameron’s stance, Goodlife Fitness, a health club with locations across Canada, came under fire when it revealed it won’t be requiring proof of vaccination from its patrons.

The decision set off a firestorm of angry reactions on Twitter.

“At this time, we are not planning to require Associates or Members to be vaccinated to enter our locations. For privacy reasons, GoodLife will not disclose information regarding any individual Associate’s vaccination status,” the Goodlife Twitter account said ahead of Ontario’s reopening.

While some users issued messages of support, many took to social media to announce plans to end their Goodlife memberships.

One retweet of the GoodLife message said, “After 7 years it’s time to cancel my membership. Absolutely reckless GoodLife. You guys will be a mecca for anti vax nutjobs…”

Another said, “Unfortunately, this has made my decision to cancel an easy one. You have every right to make that decision as a company, but I have every right to protect myself, my family and my friends by choosing facilities where people are vaccinated.”

One comedian even directly contrasted GoodLife’s policy with the stance Filmores is taking.

“Looking forward to moving my workouts from Good Life (sic) to Filmores,” the tweet said.

However, when contacted by Global News, GoodLife provided a more detailed explanation of their stance. While the company said it “fully supports” recommendations from Health Canada and “strongly encourages” everyone to get vaccinated, things get tricky when it comes to actually asking people to prove they’ve had a jab.

“Requiring proof of vaccine is not as simple as it sounds. Especially for a national business like ours that spans all provinces, there are significant legal and privacy concerns,” said GoodLife Fitness President and Chief Operating Officer Jane Riddell in an emailed statement.

“In absence of any public health or government regulation, directive, or mechanism, there is currently no effective way for us to require and assess proof of vaccination. We call on Premier Ford, the provincial and federal governments to provide clear direction, leadership, and support for the businesses as we navigate through this challenging time.”

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She added that members can feel free to “freeze” their memberships “no cost to them” and said they take many precautions to keep their facilities safe.

“GoodLife’s stringent COVID-19 safety protocols enabled us to host 9 million workouts across the province without a single confirmed case of transmission in a Club,” Riddell said.

What about customers?

It isn’t only businesses that are having to navigate vaccination status as they decide who to allow within their premises. One wedding planner told Global News that she’s been fielding many calls from clients who want to be sure anyone working their wedding is fully vaccinated against COVID-19.

“I have had some clients actually specify that any vendors hire(d), they wish for them to be vaccinated in order to secure their services,” said Shannon Kennedy, owner and principal planner with Ottawa-based Kennedy Event Planning.

“Working and speaking with some vendors, spaces and caterers, they’re highly encouraging their employees to be fully vaccinated because clients are starting to request that now.”

Kennedy explained that if a staff member from one of these services isn’t vaccinated, there’s an easy fix.

“That individual just would not be scheduled that day. And those types of conversations are being had in the background,” Kennedy said. “But I would say the majority of people in the wedding industry and the food industry are either fully vaccinated right now or at least have their second shot scheduled.”

Is this legal?

While businesses and institutions alike forge ahead with carving their own paths for vaccination requirements, there is one thing that could create a bump in the road: the law.

Employers requiring their employees to be vaccinated could find themselves in a spot of legal trouble, according to employment lawyer Lior Samfiru.

“Who decides if a workplace is safe? Well, the one that decides is the government, whether it’s federal or provincial,” explained Samfiru in an interview with Global News. “And right now, governments across the country have said as long as an employer maintains certain practices, whether it’s masking, social distancing, etc., the workplace is safe.”

Even if employers don’t feel safe under the government’s rules alone, they can’t unilaterally decide to mandate vaccines for their employees, Samfiru explained.

“Because of that, legally speaking, right now, an employer cannot mandate a vaccine, cannot fire people that have not been vaccinated, refuse to hire someone that has not been vaccinated or punish employees in any way. That’s the legal answer,” said Samfiru.

However, in practice, employers interviewed by Global News said they’ve found the issue of imposing vaccine requirements on staff doesn’t really come up. In fact, it’s often the employees who asked for everyone to be vaccinated, rather than the employer mandating it.

“That’s all we heard, was safety (concerns). ‘How are we going to operate? Is it going to be safe to operate?’ Those are the questions we had, like constantly. So that’s why, like I said, it was easy for us to say, ‘OK … we’re going to provide you the workplace that you want,'” Cameron said.

“We didn’t know if the feedback we were going to get from the public was going to be good or bad, but it turned out to be overwhelmingly good.”

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Unlike the rules for their staff, establishments have more leeway when it comes to deciding which customers they serve.

Businesses can turn away whoever they like — as long as it isn’t discriminatory under human rights statutes, according to lawyer Cara Zwibel, who is also the director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association.

This means that if someone is not vaccinated for reasons out of their control, such as medical or religious reasons, and are turned away by a business, they could have a case with a provincial human rights tribunal.

However, if someone voluntarily decided not to be vaccinated, Zwibel said it is not as clear-cut whether it could be defined as discriminatory.

“If they had a conscientious objection to being vaccinated it’s possible this might qualify as discrimination based on creed,” she said. “I’d say it would be a harder claim to establish than refusal for health or religious reasons.”

If businesses could find a way to accommodate those who remain unvaccinated, they could potentially carry on with a vaccine policy, Zwibel pointed out.

Is this fair?

There are also ethical considerations businesses should weigh before opting to put in place a mandatory vaccine policy, one expert said.

For Bowman, waiting until everyone has had a chance to actually get a vaccine is a key part of the equation.

“If we were to deny people access, like right now, this would be very unfair for a lot of reasons — there are many Canadians out there that have not had the chance or the opportunity to have double vaccination,” Bowman explained.

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There are some Canadians who have medical reasons preventing them from getting a jab, such as allergies to ingredients in the COVID-19 vaccines. The jabs also aren’t approved for children under 12 years old. These factors could make things tricky when it comes to laying down vaccine rules, he said.

“You also put these people in the position where they’re somewhat on trial,” Bowman said.

“I see it in … a friend of mine who can’t be vaccinated. You’re then in this sudden position where you’re pushed into this conversation.”

These ethical considerations have been front of mind for politicians as conversations about vaccine passports have emerged.

Speaking in January, Prime Minister Justin Trudeau said a domestic vaccine passport could have “real divisive impacts” for Canadians. However, by mid-July, Trudeau softened his stance, leaving the decision up to the provinces.

“The provinces will be making determinations,” he said at a July 13 press conference. “We’ve seen Quebec for example, move forward with an internal vaccine passport. Alberta has announced that it will not be doing that. Different provinces will be doing different things.”

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Trudeau said the federal government will be moving forward with requiring proof of vaccination for international travelers, though.

“There are countries right now and countries in the past years that, if you went to, you had to show proof of vaccination,” he said.

“Certainly the federal government will be working with the provinces to ensure that there is an internationally accepted proof of vaccination that will allow Canadians to travel freely in the coming years.”

Meanwhile, some doctors are cheering on the businesses that are forging ahead with vaccine requirements.

Dr. Isaac Bogoch, an infectious disease physician, shared his support for Filmores on Twitter.

“This is a wonderful example of protecting workers and customers. Many businesses/organizations could learn a lot from this proactive approach,” he said.

And while Cameron says he wishes he didn’t have to make the decision himself, he thinks requiring vaccines is the ethical move.

“I’d rather have somebody alive pissed off with me,” he said, “than somebody who’s not alive pissed off.

— With files from Global News’ Eric Stober

© 2021 Global News, a division of Corus Entertainment Inc.

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