On September 22, 2021, the Ontario Human Rights Commission (“OHRC”) came out with a policy statement on COVID-19 mandates and proof of vaccination certificates in response to the Ontario government’s recent vaccination laws with respect to certain settings.
In its policy statement the OHRC states that although the COVID-19 vaccine remains voluntary, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or when receiving services is permissible under the Human Rights Code (“Code”). However, protections have to be implemented to ensure that people who are unable to be vaccinated due to protected grounds under the Code are reasonably accommodated.
The OHRC’s policy statement also notes that organizations must attempt to balance the rights of those who have not been vaccinated as a result of Code-protected grounds while ensuring individual and collective rights to health and safety. Organizations have a duty to accommodate those who are unable to receive COVID-19 vaccination for medical or disability-related reasons unless to do so would significantly interfere with other people’s health and safety concerns. The OHRC confirmed that exempting individuals with a professionally documented medical inability to receive COVID-19 vaccination constitutes a reasonable accommodation under the Code.
The policy statements also set out that organizations with a proven need for COVID-related health and safety requirements might also put in COVID-19 testing in place as an alternative to mandatory vaccinations or as an accommodation option for people who are unable to receive COVID-19 vaccination for medical reasons. The OHRC states that organizations should cover the costs of COVID-19 testing as part of the duty to accommodate.
In addition to various enforcement considerations, the OHRC also emphasizes in its policy statement that proof of vaccine and policies mandating vaccination, or any COVID-19 testing alternatives, that result in a denial of equal access to employment or services on Code-related grounds should only be used for the shortest possible length and can only be justifiable during a pandemic. Organizations are expected to regularly review and update policies to match the most “current pandemic conditions, and to reflect up-to-date evidence and public health guidance.” Policies should also include the appropriate use and handling of personal health information.
Finally, the OHRC policy statement confirms that personal preferences and singular beliefs are not protected under the Code and a person who chooses not to be vaccinated based on “personal preference” does not have the right to accommodation under the Code. The OHRC states that it is “not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.”
The OHRC policy statement openly states that “[w]hile the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.” In fact, the OHRC takes it a step further by saying that even if a person is able to show that they were denied a service or employment because of a creed-based belief, 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.”
In the context of employment and labour law, in addition to various human rights concerns as set out above, what people need to understand is that this issue is bound to have many additional layers of nuance to help inform the employer and employees’ rights and obligations.
For instance, is the workplace unionized or non-unionized and whether the collective agreement is silent on the issue of mandatory vaccination?
Can mandatory vaccination at work constitute an actual individual contractual term and does the unilateral imposition of vaccination at work amount to a breach of contract by the employer?
Is mandatory vaccination truly necessary in workplaces that do not expose individuals to a high risk of contracting COVID-19 such as when employees are entitled to work from home?
Does the employer still have to provide the employee with a termination package if dismissed due an employee’s refusal to be vaccinated when said refusal is a pure question of personal choice and not because of a protected ground under the Code? Or would such a refusal amount to a cause for dismissal under the law disentitling an employee to potentially significant compensation after decades of loyal service?
Vaccination is destined to be a controversial issue as our legal system continues to grapple with it in the months and possibly years ahead and we will do our best to keep you updated on any such developments as they arise.