Written on behalf of Peter McSherry
We recently wrote about a British Columbia Human Rights Tribunal decision in which it refused to allow a human rights complaint filed against the province’s COVID-19 proof of vaccination requirement on the basis of the protected characteristic of political belief in the area of employment.
Since then, the CBC has reported that the BC Human Rights Tribunal is being inundated with complaints about mask and vaccine mandates.
Ontario’s COVID-19 Proof of Vaccination
Meanwhile, Ontario, along with many other provinces, has implemented a proof of vaccination requirement for entry to many settings as of September 22, 2021. As such, people in Ontario are required to be fully vaccinated against COVID-19 and provide proof of vaccination along with photo ID to access certain public settings and facilities. By October 22, the province intends on introducing a QR code to be scanned as proof of vaccination status.
In response, the Ontario Human Rights Commission (the “OHRC”) released a policy statement last week on the COVID-19 vaccine mandates and proof of vaccination certificates.
This policy statement, while not having any force in law, should be reviewed by businesses and employers who must comply with the new requirements as well as those who intend on implementing their own policies on the issue.
Are The Vaccination Requirements Permissible?
In its policy statement, the OHCR has taken the position that mandating and requiring proof of vaccination is generally permissible under Ontario’s Human Rights Code (the “Code”).
However, the OHCR also clarified that employers and business who enforce such requirements must ensure that people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. As such, organizations must balance the rights of those who are unvaccinated based on a Code-protected ground, namely disability, with the rights of others in regards to individual and collective health and safety.
When Will the Duty to Accommodate Be Triggered?
The OHCR set out the situations that will trigger an organization’s duty to accommodate, and those that won’t.
First, it explained that there are people who are unable to receive the COVID-19 vaccine for medical or disability-related reasons. In such situations, there will be a duty to accommodate as those persons are protected from discrimination under the Code. However, it should be noted that the duty to accommodate is always subject to the concept of “undue hardship” and is thus not without limits. Additionally, accommodation may not be available where it would significantly interfere with people’s health and safety.
It should also be noted that Ontario’s regime requires that people who are unable to receive the vaccine for medical or disability-related reasons must provide written proof. The OHCR has determined that exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code.
However, the OHCR also clarified situations in which the duty to accommodate will not be triggered. In particular, it stated that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. Noting that creed is a protected ground under the Code, the OHRC stated that it is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed. The policy statement further expanded on the issue, stating:
“While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.”
Recommendations for Employers and Businesses
For those employers, businesses and organizations that are not required under the Ontario regime to mandate proof of vaccination but choose to implement such policies, the OHRC recommends that they use the provincial proof of vaccine certificate with the written documentation showing medical inability to receive the vaccine as their way of meeting the duty to accommodate where needed.
Additionally, it recommends that such organizations also put in place COVID-19 testing as an alternative to mandatory vaccinations or as an option for accommodating people who are unable to receive a vaccine for medical reasons. However, the OHRC noted that such testing costs would need to be covered by the organization itself as part of the duty to accommodate.
Further, the OHCR stated that organizations should ensure that any related policies also include rights-based legal safeguards for the appropriate use and handling of personal health information.
Finally, the OHRC provided the following general guidance:
“Proof of vaccine and vaccine mandate policies, or any COVID testing alternatives, that result in people being denied equal access to employment or services on Code grounds, should only be used for the shortest possible length of time. Such policies might only be justifiable during a pandemic. They should regularly be reviewed and updated to match the most current pandemic conditions, and to reflect up-to-date evidence and public health guidance.”
Concerns Raised by Proof of Vaccination Policies
Finally, the OHRC raised several concerns regarding barriers that exist for equitable vaccine access and COVID testing and the enforcement of such policies stating:
“The OHRC urges governments and organizations to take proactive steps to make sure any enforcement of vaccine mandates or proof of vaccination policies does not disproportionately target or criminalize Indigenous peoples, Black and other racialized communities, people who are experiencing homelessness, or with mental health disabilities and/or addictions.”
Contact Peter McSherry Employment Lawyer
If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.