As COVID-19 infection rates and corresponding hospitalizations continue to climb in Alberta, employers are increasingly implementing mandatory vaccination policies to keep workers safe. Failing to comply with mandatory vaccination policies often results in employees being placed on unpaid leaves of absence or, in some cases, terminated from employment. Given the significant consequences that arise from non-compliance, an often-asked question, both by employers and employees, is who qualifies for exemption from the policy and on what grounds.
Generally speaking, the law only requires an exemption from mandatory vaccination policies where an employee requires accommodation on the basis of a ground protected by human rights legislation. Most commonly, the protected grounds engaged in the case of vaccine mandates are disability and sincerely held religious beliefs.
In the case of disability, employees who have a medical condition that does not allow them to get vaccinated may seek accommodation from their employer. In most cases, employees seeking accommodation on the basis of disability would need to demonstrate that they have a medical condition which means that getting the COVID-19 vaccine would be contraindicated. Employees must support an accommodation request of this nature with documentation from a medical practitioner.
The College of Physicians and Surgeons of Alberta ("CPSA") has recently released guidelines for Alberta physicians who receive requests from patients for vaccine exemptions. As stated in the guidelines, the COVID-19 vaccine is safe and effective for nearly every individual aged 12 or older. There are no medical conditions that would universally warrant a complete exemption from the initial COVID-19 vaccine. A patient's or physician's individual moral objection to vaccination is not considered sufficient clinical rationale for exemption of vaccination against COVID-19. The CPSA guidelines note that a physician's informed clinical judgement that an exemption from COVID-19 vaccination is appropriate for a patient is expected to be exceedingly rare.
Employees seeking accommodation on the basis of sincerely held religious beliefs must demonstrate a belief system that shapes their identity, world view and way of life and that this belief system will not allow the employee to be vaccinated. As noted recently by the Ontario Human Rights Commission, personal preferences or singular beliefs will not engage human rights protection on religious grounds. A personal preference not to be vaccinated or a singular belief against vaccination does not need to be accommodated under human rights law and would not qualify an employee for exemption from a workplace vaccine mandate. Religious exemptions from vaccine mandates are also likely to be uncommon.
In the event that employees do require accommodation on human rights grounds, there are several options for consideration. Employers can consider requiring the employee to undergo regular COVID-19 testing in lieu of vaccination, having the employee work from home, rearranging shift schedules to minimize contact with co-workers, or re-assigning the employee to duties that limit in-person interaction with co-workers or customers. However, it is important to recall that these alternate measures only need to be considered when an employee has established a need for accommodation under human rights legislation. These options do not need to be offered to employees who have a moral objection to vaccination or would simply prefer not to receive the COVID-19 vaccine.
Field Law can assist employers with reviewing exemption requests and considering the employer's duty to accommodate in the context of mandatory vaccination policies. If you have any questions, contact a member of Field Law's Labour + Employment Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.