Arts Re-Entry Clinic will be closed for the holidays from December 20 to January 4.
Our team will get to your intake forms as soon as possible upon their return to work and we appreciate your patience.
a legal clinic for the Arts & Culture and Heritage sectors
Powered by PLEO and the Artists' Legal Outreach, Arts BC, and the BC Museums Association
Funded by BC Arts Council
There are myriad questions facing arts, culture and heritage organizations as programs, presentations, and performances resume amid the fourth wave of the COVID-19 pandemic.
The Arts Re-Entry Clinic provides summary advice telephone service to help galleries, theatre companies, museums and other arts based organizations navigate the uncertainties of the Public Health Orders and how they impact relationships between employers, culture workers and audiences.
Accessing the Summary Advice Telephone Service
Summary legal advice related to Covid-19 is available to non-profit BC-based arts organizations with annual budgets under $1,000,000. Priority will be given to those under $250,000.
Through this website and our summary advice telephone service, we aim to help galleries, theatre companies, museums and other arts based organizations navigate the uncertainties and grey areas of the Public Health Orders and how they impact relationships between employers, culture workers and audiences.
As part of this effort, we recently hosted an on-line conversation between Martha Rans, Legal Director of PLEO/ALO, and human rights lawyer, Clea Parfitt. You can find a complete recording of that 60-minute event here.
Frequently Asked Questions
RETURNING TO WORK
What is an organization's responsibility to its staff under the current Provincial Health Order AND Worksafe BC rules?
An organization is always responsible for the health and safety of its employees in the workplace while also observing privacy, human rights and employment laws.
The Provincial Health Office (PHO) and WorkSafeBC encourage but do not mandate (require) the continued use of efforts that may already be in place to reduce the spread of COVID-19 and are not interfering with business - hand sanitization, physical barriers, etc - within non-public workspaces. In all non-essential public spaces, including galleries, museums and theatres masks are required. These spaces will be workspaces for some.
Do we need a COVID safety plan?Earlier in the pandemic, employers were required by WorkSafeBC to create and share a COVID-19 safety plan. This is no longer the case. Instead WorkSafeBC requires the creation of a plan to reduce the spread of communicable diseases. However, unlike the previously required COVID-19 safety plan, the communicable disease safety plan does not need to be posted or shared publicly.
Can an organization or presenter mandate that all staff, contractors, and volunteers be vaccinated?
Generally, employers have the right to organize their workplaces as they see fit, subject to provincial or federal rules such as the Employment Standards Act or Canada Labour Code, WorkSafeBC Occupational Health and Safety rules, provincial health orders, the Human Rights Code, and any contracts the employer may have entered into with its employees, including collective agreements with a union. Currently, aside from healthcare settings, no provincial law or health order requires that employers have a vaccination mandate.
Employers CAN mandate vaccinations for staff, contractors and volunteers. However, a number of considerations apply, as is always the case when employers unilaterally make new rules for their workplaces.
Contract Issues: Where staff members and contractors have employment contracts that pre-date a new employer rule about vaccinations, and where those contracts make no mention of vaccination status as a condition of employment, making a rule that employees provide proof of vaccination to attend work, and in particular making a rule that employees who do not will be suspended or terminated, may be considered a fundamental change to the employment contract. When an employer makes a unilateral change that amounts to a fundamental change, employees who do not agree to the change, for example employees who are not able or willing to provide proof of vaccination, may be able to consider themselves terminated without cause. An employee found to be terminated without cause is entitled to reasonable notice. Unless reasonable notice is limited in the employment contract, a rough rule of payment to the employee of one month of pay per year of service can apply.
Privacy Issues: Privacy concerns may also arise as a vaccination mandate requires employees to disclose their private vaccination status. Asking employees to prove their vaccination status is a form of collection of private information. Collection of this information requires consent, and requires a plan for use of the information consistent with the consent provided, a plan for safe and private storage of the information, a plan for disclosure of the information, and a plan for the information to be disposed of when the permitted use is no longer required. If an employer requires that the information be collected and the employee does not agree, that as well could amount to alteration of a fundamental term of the employment relationship such that the employee may be able to consider themselves constructively dismissed.
Human Rights Issues: A vaccine mandate, like any other employer rule, may have a disproportionate negative impact on some employees because of their personal characteristics. This can arise, for example, if someone has a serious reason such as a disability, religious belief or political belief for not getting vaccinated. The rule then will be a particular hardship for them.
A rule that has a disproportionate negative impact on the basis of a personal characteristic will be discriminatory under the Human Rights Code unless it was impossible for the employer to accommodate the employee without undue hardship. The concept of undue hardship means that some hardship will not be enough to show that the employer did everything it could to avoid the negative impact.
If an employee can establish that they have a serious reason such as a disability, religious belief or political belief for not getting vaccinated, they may be protected by the Human Rights Code’s prohibition against discriminaton, and the employer will then need to accommodate that person to the point of undue hardship to avoid discriminating against them. This can mean making alternative working arrangements, including working from home, or providing for a leave.
The fact that no Provincial Health Order requires that employers outside the healthcare sector impose a vaccine mandate means that employers cannot protect themselves by saying that they were legally required to have a vaccine mandate. It gives individual employers flexibility, but also leaves them more exposed if a new rule creates legal issues for some employees.
All of this must be balanced against the reasons for having a vaccine mandate, which include the high social benefit of encouraging vaccination of everyone, the benefit of doing everything possible to keep employees well and at work, and even the need to retain employees and customers who might expect an organization to have a vaccine mandate.
If you are thinking about creating new rules, it is a good idea to sound out your employees first. Openness, transparency, and communication are always helpful in trying to avoid conflict. As BC’s Human Rights Commissioner has stated, it is critical at this time to treat each other with the empathy and compassion with which we would like to be treated.
Best practices when considering making a serious unilateral change to established employment relationships in the workplace might begin with inviting discussion and engagement with individual employees by asking non-judgmental and open-ended questions. For example, “I think we would all be safest if we had a rule that everyone is vaccinated. Would you anticipate that such a rule would impede your ability to work in this workplace?” What an employer hopes to hear back are responses like, “No, it wouldn’t bother me” or, “I’m already vaccinated so it wouldn’t change anything” or, “Yes, it would be a problem for me”. You might also want to lay out the reasons for a vaccine mandate.
An employer is not entitled to ask for specific medical information, but an employer can engage with employees in private with questions such as, “What are the limitations you would have as a consequence of your situation?” or “Is there a way we could work around your situation?” By asking open-ended questions, you may be able to alleviate some of the risk while inviting non-judgmental and respectful dialogue.
Despite your personal feelings, as an employer, you might have to accept some inconvenience to work around an employee’s objections, as the Human Rights Code requires you to do. Under human rights law, the burden is on the employer to make any accommodations necessary short of those that would cause “undue hardship” to the organization. You can find information and resources on COVID- 19 specific human rights law on the BC Human Rights Tribunal COVID page and COVID-19 page on the BC’s Office of the Human Rights Commissioner website. The burden on the employee is to work with the employer to find and implement a reasonable accommodation, if possible.
Can an employer inquire about an employee's vaccination status? Under what circumstances can employers request proof of vaccination from staff & volunteers?
Aside from employers in the health care sector, the Provincial Health Order does not require employers to obtain proof of vaccination of their employees and volunteers, and does not require employees and volunteers to provide this information. The Provincial Health Order is only applicable to patrons.
Employers can ask employees and volunteers to provide this information on a voluntary basis. In doing so, they should explain why they need the information, what they will and will not do with it, how it will be stored, and when it will be disposed of. If employees do not consent to the collection of this information, the employer must consider whether it wants to insist on receiving this information and take the chance that the employee will consider this a fundamental change of their terms of employment, and therefore consider themselves constructively dismissed.
Employers have less risk with volunteers as they likely do not have an ongoing contract with volunteers. Employers can make the workplace rules they want for volunteers who then have the option of not providing the requested information and not volunteering.
However, as noted above, any time a strict rule is being imposed and enforced on an employee or a volunteer, an employer should consider whether the person has a personal characteristic or personal belief that may be at play such that human rights considerations apply, including the need to accommodate those personal characteristics to the point of undue hardship. See the discussion above.
RETURNING TO PRESENTATIONS & PERFORMANCES
May we require patrons to wear masks during a performance or exhibition?
Yes. In fact, you must. As BC returns to full capacity events, your obligation to enforce the Provincial Health Order requiring the wearing of masks in all public spaces is important for the safety of your patrons, performers and staff. It is also legally required. The Provincial Health Order also makes persons attending your performances and exhibitions responsible for ensuring that they wear a mask.
May we require patrons to show proof of vaccination for a performance or exhibition?
If the event falls under the proof of vaccination Provincial Health Order, then you must. The enforcement of the Provincial Health Order requiring proof of vaccination is important for the safety of your patrons, performers and staff. It is also legally required. Museums and art galleries do NOT fall under the proof of vaccination Provincial Health Order (except for events held in these venues).
Who is responsible for verifying compliance with the vaccine mandate, our company or the venue in which we are presenting?
The Provincial Health Order says that both the venue owner and the entity presenting an event have this responsibility. If you are leasing space, it may be that the venue owner has used its contract with the entity using the space to make verifying compliance the vaccine mandate the responsibility of the entity presenting the event. Arrangements will vary from venue to venue but in most cases you, as presenter, through your Front of House (FOH) staff and volunteers, are responsible for verifying that your audience members are vaccinated and masked.
Who among our staff should be verifying the proof of vaccination? The Executive Director? The box office staff? Our volunteers?
The organization presenting the event is responsible for determining that patrons comply with the vaccine mandate. The arrangements you make will depend on lots of factors like layout, staffing levels and logistics. The task may be performed by a volunteer or staff member stationed at the door. Larger organizations operating their own facilities may have security staff who can verify compliance, whereas a small theatre company presenting work in a black box theatre may have one or two staff members or volunteers doubling as FOH and Box Office. The most important thing is to make sure that vaccination is verified and, in the event that a ticket holder can’t or won’t verify their status, that they be refused entry. It’s up to your organization to decide how best to use your resources to ensure compliance.
Is the staff member or volunteer tasked with verifying audience members' vaccination status legally liable?
It is unlikely that the PHO will attempt to place liability on individual staff members or volunteers, even though the order says that a person can only permit a space to be used for an event if the event is compliant with the Provincial Health Order. Liability is imposed on the presenter, gallery or theatre.
What if an audience member is medically exempt from the vaccine mandate?
Currently, the PHO vaccine mandate applies to everyone and does not make allowances for medical or religious exemptions. This is potentially inconsistent with the BC Human Rights Code. If there is a conflict between the BC Human Rights Code and another enactment, the BC Human Rights Code, the Code says that it prevails (Code, s. 4). However, it may well be that the difficulty of verifying a personal reason for not being vaccinated, and devising an appropriate accommodation, combined with the existence of the Provincial Health Order is sufficient to establish undue hardship such that no accommodation is required, particularly if the issue does not arise until the day of the event itself.
A best practice may be to advise ticket buyers that proof of vaccination and ID is required and that anyone wanting to claim an exemption from the Provincial Health Order must provide proof of their exemption before the event so that the organization can consider the feasibility of accommodating that person such that others are not placed at undue risk, for example through physical distancing. Ideally the feasibility of any such an accommodation would be carefully considered before anyone asks to be accommodated.
Are volunteers considered staff members for the purposes of the public health order?
Volunteers are considered staff for the purposes of the Provincial Health Order. Whether compensated or not, anyone engaged by the presenter is equally subject to the standards of the Public Health Order and should be treated - and protected - as such.
What is my liability if an audience member gets infected with COVID-19 at my venue or event?
In practical terms, it is very unlikely that anyone becoming infected with COVID-19 will be able to prove where they became infected. That aside, infection with COVID-19 is not really different than any other hazard an audience member might be exposed to at your event. Some event organizers use ticket waivers to reduce the risk of liability from someone getting injured. Event organizers also obtain occupiers liability insurance to protect themselves from the legal consequences arising from injuries during an event. This kind of insurance helps to pay for your defence, even if your actual risk of being found liable is low. To avoid liability for negligence, you need to take reasonable care. A presenting organization that is fulfilling its obligations under the Provincial Health Authority is not likely to be found negligent.
Is there any distinction between staff such as employees and contractors and performers or artists in a show? Can we introduce specific mandates for them or is that a human rights issue?
Performers are essentially contractors. The difference is that they are a rare resource and not as easily replaced if they become ill or get exposed to COVID-19. If a staff person gets sick, you may be able to find someone to fill that job temporarily in a way you can’t for a lead performer. So while there is no distinction from a general employment perspective, there may be a real distinction in practical terms.
If you have a limited run of a play or dance piece, you might have substantial concerns about your show going dark because of the loss of a cast member, or exposure of others in the cast to COVID-19. It is also likely that you have a limited contract with performers, making it easier to introduce terms such as mask or vaccination mandates, including in the rehearsal room, even though neither the Provincial Health Order nor WorkSafeBC require you to do so.
You can treat various groups of employees or contractors differently from each other, as long as you do not do so because of their personal characteristics. The Human Rights Code only prohibits negative distinctions that are made on the basis of personal characteristics. Whether a person is a performer or a staff person is not a personal characteristic covered by the Code.
What are our potential liabilities when enforcing the provincial health order?
As the Provincial Health Orders about COVID-19 and employer rules about masks and vaccines in addition to the Provincial Health Orders are relatively new, there is little settled case law to look to for guidance.
Organizations are required to comply with Provincial Health Orders. However, the actual requirements of the Provincial Health Order are straight-forward: you must verify proof of double-vaccination of guests through their vaccination passports and their identification, and you must take reasonable measures to ensure that masks are worn as required. Making all best efforts to do these things will significantly reduce the potential for liability. It is also helpful to remember that the obligation to comply with both sets of rules also lies with your guests.
Failing to enforce the Provincial Health Order can have serious consequences. Several businesses that have consistently flouted the requirements of the Provincial Health Order and vaccine mandate have had their business and liquor licenses suspended, forcing them to cease operations altogether.
What about human rights?
To date, there have been no successful human rights challenges in BC to Public Health Orders. In part this has been due to the types and arguments of the cases brought, and in part this is due to the short amount of time since many of the Provincial Health Orders were imposed.
It is likely that the fact that the current Provincial Health Order only applies to non-essential public spaces and services, and has been made in the face of ongoing significant rates of infection, hospitalization and death, that it will be found to be reasonable even in cases where it has an adverse impact on someone because of that person’s protected personal characteristics. The finding is likely to be that avoiding this adverse impact would have been an undue hardship.
That said, as noted above, the Provincial Health Order is not an ironclad protection against a human rights complaint because the Human Rights Code predominates over other enactments, including arguably Provincial Health Orders . Service providers should consider whether it would be feasible to accommodate an individual with a serious incapacity to mask or get a vaccine because of their personal characteristics without creating undue risk for others.
As for employer-mandated mask and vaccination rules, reasonable efforts just short of undue hardship must be made to accommodate employees who are negatively impacted by these rules because of their protected personal characteristics, including disability, and political and religious beliefs. An employer faced with a request for accommodation should likely seek legal advice before refusing that accommodation or taking steps to terminate or suspend an employee whose personal characteristics are at play.
Accessing the summary advice telephone service
Summary legal advice related to Covid-19 is available to BC-based arts organizations with annual budgets under $1,000,000. Priority will be given to those with budgets under $250,000.
Read any relevant documents such as the BC Human Rights Commissioner’s guidance on proof of vaccination
Fill in the intake form
A lawyer will contact you and provide 30 minutes of summary advice. *Please note, due to high demand it may be up to one week before you are contacted.