As of September 22, 2021, many businesses are required to screen their patrons for proof of vaccination as a condition of entry. On the same day, the Ontario Human Rights Commission (OHRC) released a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates, which can be found here. While these policy statements do not have the force of law, they do offer useful guidance on the potential human rights pitfalls associated with COVID-19 vaccine mandates and certificates. This is particularly useful information for employers who are implementing their own COVID-19 vaccination policies for employees.
Vaccine Requirements ARE Permissible
In general, the OHRC's position on vaccine mandates is that they are permissible for the protection of people at work and when individuals are receiving services from a business. However, all policies must provide for reasonable accommodation for employees and patrons who are unable to be vaccinated for reasons protected under the Human Rights Code (the "Code").
The most common claim for accommodation from COVID-19 vaccine requirements is likely to be on the grounds of disability. However, it is important to note that any individual claiming the need for accommodation must provide proof of their need. As recognized by the OHRC, the only available proof would be a written document from a physician, nurse practitioner or a registered nurse extended class (which is to be distinguished from a registered nurse generally). Employers can continue to insist that the document be provided prior to accommodating these individuals. Eventually, the province intends to institute a digital vaccination certificate where this information will be housed. Until that time, employers and service providers should continue to insist that written medical documents be provided.
Where legitimate grounds for accommodation exist, employers should also clarify whether the employee's inability to get vaccinated is time limited or permanent. Where the restriction is time limited, employers should seek clarification with respect to how long the restriction is expected to last. Any employee who is being accommodated will likely still be subjected to regular COVID-19 testing. The OHRC takes the view that costs associated with the testing of these individuals will need to be covered by employers as part of their duty to accommodate.
The OHRC also notes that employers should be reviewing their policies regularly with appropriate changes to protocols in line with public health guidance and government action.
Accommodating Religious Belief
Interestingly, the OHRC policy statement does not address potential accommodation claims on religious grounds. Any employer faced with a religious accommodation request to a vaccine policy should, like any other type of request, be requesting proof that the employee does in fact hold a sincere religious belief that prevents them from being vaccinated. For example, a letter from the individual's spiritual leader or other similar evidence that the belief is both sincerely held, and impacts their ability to be vaccinated. Employers always have a right to certain kinds of information when it comes to accommodation request, and a request based on religious grounds is not exception.
The OHRC guidance is clear that personal preferences are not protected under the Code. In particular, the OHRC notes that it is unaware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed (which is protected) within the meaning of the Code. Moreover, according to the OHRC, even if an individual could establish the need for a creed related accommodation, the individual may not be exempted from the vaccination mandate where there are significant health and safety risks. These risks may be considered an "undue hardship" for employers to bear and significantly limit the duty to accommodate an individual.
Addressing Barriers in Access
The OHRC encourages vaccine policies to address the barriers that some individuals may face in accessing testing or vaccination. For example, individuals and groups who have faced discrimination or traumatic experiences while receiving health care. It is for this reason that we suggest the focus on vaccine policies, at least at this early stage, should be on education and support to encourage vaccination, and the OHRC policy statement supports this approach.
Operating in Multiple Provinces/Jurisdictions
Many other provincial human rights commissions have released similar guidance, and employers operating in multiple provinces should ensure that policies reflect the guidance given in each jurisdiction. While the human rights concepts are generally the same, each policy statement was written to address mandates specific to their own jurisdiction. As such, employers should ensure that they are relying on the information relevant to their jurisdiction of operation. This may require small amendments to policies in force in different provinces. As of the date of this article, similar policy statements have been issued by human rights commissions in the following provinces:
- British Columbia
- New Brunswick
- Prince Edward Island
- Nova Scotia
- Newfoundland and Labrador
Interestingly, the Canadian Human Rights Commission, which covers federally-regulated employers, has not weighed in on mandatory vaccine policies despite the Federal government advising that it intends to require federal public service employees and employees in the air, marine and rail transportation sectors to be fully vaccinated.
While many employers may have been hesitant to institute their own vaccination policies, they are now increasingly accepted and instituted in all kinds of workplaces. It is too soon for any court or tribunal to have had the chance to address vaccination policies, although we are aware of several challenges working their way through the legal system. Although we have no direct guidance from decision makers, general human rights legal principles support an employer's ability to institute a reasonable vaccination policy in their workplace. The OHRC policy statement provides even more support for that conclusion. However, vaccine policies should be tailored to each individual workplace, and we recommend receiving specific legal advice prior to drafting and implementing one in your workplace.
We here at CCPartners have already begun drafting vaccination policies for large and small employers in both the public and private sectors. If you have questions the lawyers at CCPartners are here to help. Click HERE to access CCPartners' "Lawyers for Employers" podcasts on important workplace issues and developments in labour and employment law or contact any of our team members to answer you workplace questions.
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.