As of September 22, 2021, the Government of Ontario requires that patrons of certain non-essential businesses provide proof of full vaccination as a condition of access (the "Provincial Vaccination Certificate Program". This Provincial Vaccination Certificate Program focuses on higher-risk indoor public settings including restaurants and bars, meeting and event spaces, fitness facilities, gaming establishments, concert venues and sporting events (among others).
In an effort to bring clarity to the intersection between vaccination mandates and human rights, the Ontario Human Rights Commission (the "OHRC") published a policy statement on September 22, 2021 (the "Policy Statement") that provides helpful information for businesses in Ontario. While the release of this Policy Statement corresponds with the commencement of the Provincial Vaccination Certificate Program, the OHRC notes in the Policy Statement that its position applies to all organizations, which is very helpful for employers.
In the Policy Statement, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code (the "Code"), as long as safeguards are put in place to ensure that those who are unable to be vaccinated for Code-related reasons are reasonably accommodated. This corresponds with the Provincial Vaccination Certificate Program which contemplates medical exemptions for those who are unable to be vaccinated for prescribed medical reasons (see our blog here for a discussion of the Government's guidance in this regard). According to the OHRC, exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code.
Further, the OHRC makes it clear that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. 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.
The Policy Statement further emphasizes the following guidance and principles concerning proof of vaccine and vaccine mandate policies:
- Organizations must attempt to balance the rights of people who have not been vaccinated due to a Code-protected ground while ensuring individual and collective rights to health and safety.
- Organizations that are not covered by the Provincial Vaccination Certificate Program but that wish to mandate vaccination as a condition of entry are encouraged to use the provincial proof of vaccine certificate with written documentation showing medical inability to receive the vaccine as their way of meeting the duty to accommodate where needed.
- Organizations who put COVID-19 testing in place as part of a medical accommodation for persons who are unable to receive a vaccine for medical reasons should cover the costs of the testing as part of the duty to accommodate.
- Proof of vaccine and vaccine mandate policies might only be justifiable during a pandemic and should regularly be reviewed and updated to match the most current pandemic conditions, and to reflect up-to-date evidence and public health guidance. Policies should also include safeguards for the appropriate use and handling of personal health information.
- Ensuring access to vaccines and testing for vulnerable Ontarians is a necessary element of any vaccine mandate or proof of vaccination regime. The OHRC also stresses the need to make sure digital proof of vaccine certificates are designed to be fully accessible to adaptive technology, including for smart phone users with disabilities, in accordance with the Accessibility for Ontarians with Disabilities Act.
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