Lawyer says Sask. businesses can require proof-of-vaccination past Monday

Regina's Bodhi Tree yoga studio, which made headlines last summer when it implemented a proof-of-vaccination requirement before the provincial government did so, will be axing its vaccine policy on Monday, partly because of comments made by Premier Scott Moe.

The province announced on Tuesday it would be lifting the proof-of-vaccination public health order two weeks before it was set to expire. That means, as of next Monday, customers will no longer be obligated to show proof they've received two shots of a COVID-19 vaccine or a negative PCR test to enter restaurants, bars and liquor stores, among other businesses. 

Moe said businesses that choose to continue requiring proof-of-vaccination after the province's mandate is lifted will not have legal protection, as they did while the mandate was in place.

"My advice to them would be to consult their lawyer," the premier said.

"Private businesses [are] free to do what they choose but they also may have some consequences that would be a result of that."

Colin Hall, co-owner of Bodhi Tree, said he interpreted those remarks "as a bit of a threat."

"Our business has been through enough over the past two years,"  Hall told CBC News. "The last thing we need is to sort of be running afoul of the law and running into any extra issues that way."

Nothing in Human Rights Code that says you can't ask for proof-of-vaccination: lawyer

Roger Lepage is a lawyer at Miller Thomson LLP in Regina who primarily practises in labour, employment and human rights.

He said he believes businesses can still require proof-of-vaccination for employees and customers without fear of legal action. 

"The issue for a private business comes down to whether asking for proof-of-vaccination violates the Saskatchewan Human Rights Code. There's nothing in the code that says you're prohibited from asking for proof-of-vaccination," Lepage said in an interview.

He said the Health Information Protection Act allows a person to protect the privacy of their health records, but if a person is asked about their vaccination status and wants to disclose it, that's not unlawful.

Lepage said that if a person refused to show vaccination or wasn't vaccinated, and therefore wasn't allowed into an establishment, the person could try filing a complaint with the Saskatchewan Human Rights Commission alleging discrimination based on a prohibited grounds such as disability, perhaps.

Then the commission would do a preliminary screening of that complaint and would have to decide if on first impression there is an obvious case of discrimination.

Lepage said that in his opinion, it would not be an obvious case of discrimination, but that people can still take up the issue with their MLA. 

Lepage said it's still a good idea for businesses to talk to lawyers before keeping health measures in place and to clearly communicate to customers why they're doing it.

Hall said the mandatory masking mandate in his yoga studio will stay in place past the end of the month, when the province's public health order expires.

He said it will remain in place until data indicates it's safe to keep indoor masking optional.

Meanwhile, the Broadway Theatre in Saskatoon is keeping both vaccination and mask requirements.

On social media, the theatre said while the lifting of mandates "may be more convenient for several of our community members, we recognize that isn't the case for all."

Vaccine, regular testing mandate dropping for public servants

The vaccine and regular testing mandate for employees of government ministries, Crown corporations and agencies will also end on Monday after being introduced last fall.

Crown Investments Corporation communications director Joanne M. Johnson said "disciplinary actions" were taken in the Crown sector according to the legislation and regulations in effect and that there "will be no change" to those actions.

The Saskatchewan Health Authority (SHA) will be "assessing" its proof-of-vaccination policy in the days ahead both within health facilities and as a policy directive for all team members, according to a prepared statement by John Ash, incident commander at the SHA Emergency Operations Center.

"In the meantime, staff are being advised to continue following existing procedures, including regular rapid testing and staying home when sick," the statement said.

The SHA will also "review its policy guidance on masking and visitation for family presence and visitors in long-term care and hospitals. The current policy will remain in place as we assess how to best protect our vulnerable residents and patients, while ensuring family members are able to provide support in person."