Vaccine passports won’t be required in Sask., so where does that leave businesses?

The Saskatchewan government’s decision to no longer ask for proof of vaccination at various venues and businesses in the province will transfer pressures onto businesses, criminal lawyer Brian Pfefferle said.

The Saskatoon lawyer said the government imposing the rule until this point absolved businesses from responsibility for requiring the proof of vaccination.

“If this violates someone’s privacy or human right, then they can take that up with the government, not with the private business,” Pfefferle said.

That won’t be the case anymore as of Monday. During the province’s announcement that restrictions in Saskatchewan would soon be lifted, Premier Scott Moe said businesses aspiring to continue requiring proof of vaccination from their customers should seek legal advice before doing so, as all provincial protections will be removed.

If a business puts in a call to a lawyer, which Pfefferle recommended, he said they’d receive information about possible risks they’d face by imposing proof of vaccination requirements.

“We have a free country and that means businesses to a large degree are able to run their businesses as they like as long as they don’t discriminate against people based on race, creed, religion — those sorts of things,” Pfefferle said. “Because of that, I think people could continue (with proof of vaccination).”

However, the issue is far from black and white, with Pfefferle calling it an “extremely complicated area.”

Because of the unprecedented nature of the pandemic and this situation, Pfefferle said there is likely a solid argument for businesses to continue asking for vaccine proof on the basis of their understanding of science supporting that vaccines do prevent some spread of certain COVID-19 variants.

Of course, the science is not perfect and vaccines do not completely prevent someone from contracting the virus, Pfefferle said. But if a business wishes to advocate for vaccines because they have been shown to substantially reduce the spread of the virus, he said that’s not a bad action to take.

For businesses who want to maintain a proof of vaccination policy, Pfefferle said it’s his opinion that vaccines are something governments have supported since the beginning, to the point where it was provincially mandated for businesses to require them.

“I think a carefully drafted policy for entrance where you aren’t storing and gathering private information contrary to privacy legislation (would work),” he said.

“You’re aware that there may be exemptions to certain requirements that someone be vaccinated and you know that vaccines have been widely available to anybody that wants one, so it’s not like someone is being prevented because of their geographical region … I think you could properly craft something that could probably keep you out of trouble. But that’s the best you could say.”

He anticipated some businesses will make the decision to keep vaccine requirements in place but most will not.

Pfefferle said there’s always a risk of litigation — a customer who isn’t vaccinated could present themselves at a business requiring proof of vaccination and, frustrated at being denied service, could pursue legal action against that business.

Regardless of the outcome, Pfefferle said such a situation would cost a business money and a headache. But he doesn’t anticipate that situation will be common.

“You have a hard time, in my view, finding a lawyer that’s going to say you’ve got a great case there to go after that restaurant or businesses,” he said.

A bigger concern would be when a customer presents a legitimate medical or religious reason they cannot be vaccinated, which opens up the potential for discrimination challenges if a business chooses to not serve that customer.

And leaving the policing of such a policy to the often young, part-time employees behind the counter or waiting to seat customers makes the situation even more tricky.

Pfefferle discussed the social climate and need for proof of vaccination policies. Before they were introduced by the province, Pfefferle noted, some businesses had already made the decision to create proof of vaccine policies on their own accord.

At the time, fewer people were vaccinated, he said, and there was a better chance those who were not vaccinated might be convinced to roll up their sleeves.

Today, however, with closer to 20 per cent of the province’s population not vaccinated and largely unwilling to budge on their decision — whether for medical, religious or personal reasons — Pfefferle said he thinks the social utility may have been maximized in requiring proof of vaccination.

As well, the definition of what it means to be “fully vaccinated” has been shifting in society’s view, from two doses to three.

“The social utility has changed and in that regard, I do agree with Premier Moe on this,” Pfefferle said.

That can leave businesses feeling vulnerable as Monday approaches.

“Now that that push is over (to get vaccinated), you wonder from a utility perspective how many people are going to be entering your business that are unvaccinated?” Pfefferle said.

He said businesses will need to consider potential privacy issues and practical implementation steps — how businesses are collecting private information without the government’s approval behind them, for example.

“But I think the pieces are certainly there. We’ve got a very serious virus that continues to cause significant impact and there’s a suggestion that this has, at least, some beneficial impact,” Pfefferle said. “These are dicey issues.”

The legal considerations for businesses pursuing such steps would reflect on the necessity of maintaining a vaccine passport system, whether it is effective, and if it is a proportional step to address the risk posed by COVID-19.

Pfefferle said he appreciated hearing Moe suggest businesses seek legal advice on the issue and added it might require the expertise of several legal professionals. While Pfefferle focuses exclusively on constitutional and criminal issues, labour concerns would also need to be addressed, he said.

Ultimately, it will depend on what model businesses want to follow and how they and their staff feel safest proceeding.

“If you want to signal to people that (vaccination is) something you view as important, you may drum up business,” Pfefferle said, calling it a cost-benefit consideration and noting there could be negative repercussions as well.

“Businesses have had a ton of stress already. This is just difficult for small businesses that have suffered,” Pfefferle said of the past two years of the pandemic in Saskatchewan.

“It hasn’t been easy for many of these restaurants and service industry people.”

— With files from 650 CKOM’s Justin Blackwell