Over the last couple of months when people ask me what kind of law I practice I say, “I am a COVID vaccination policy lawyer.”
Anyone watching and reading the news is aware of this controversial topic which has arisen during the COVID pandemic’s fourth wave.
Many — if not most — organizations have recently introduced a mandatory COVID vaccination or/or a COVID negative policy. A mandatory vaccination policy requires an employee to get double vaccinated, whereas a COVID negative policy requires an employee to regularly test negative for COVID.
A mandatory COVID vaccine policy must exempt those who qualify for an exemption for medical reasons or because of creed under the Ontario Human Rights Code.
The Ontario Human Rights Commission recently issued its policy statement on COVID 19 vaccine mandates and proof of vaccine certificates. It states, in part:
“…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 (Code) as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.”
What are Code-related reasons? The Policy says for medical reasons (i.e. a disability) and creed. It also states that personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
So the question becomes, what disabilities require an exemption from mandatory vaccination policy?
The Ontario Ministry of Health takes the position that there are only two valid medical exemptions from COVID-19 vaccination requirements. The first would be an allergic reaction to a component of the vaccine within an individual, which must be confirmed by an allergist or immunologist. The second would be if an individual suffered myocarditis or pericarditis after the first dose of a vaccine.
So what if an employee provides a doctor’s note recommending that an employee be exempt from a mandatory COVID policy for medical reasons but does not disclose one of these two exemptions? Normally an employer cannot require an employee to disclose a disability. The OHRC policy is silent on this issue.
The other question becomes which creeds have a belief system that requires an exemption from a mandatory COVID vaccination policy?
According to the OHRC’s Policy on preventing discrimination in creed, “The Code does not define creed, but the courts and tribunals have often referred to religious beliefs and practices. Creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life. The following characteristics are relevant when considering if a belief system is a creed under the Code. A creed:
- Is sincerely, freely and deeply held
- Is integrally linked to a person’s identity, self-definition and fulfilment
- Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
- Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
- Has some “nexus” or connection to an organization or community that professes a shared system of belief.
I have reviewed one very well written letter from an employee (which was likely written by a lawyer!) asking for an exemption because of her creed. The balance of the cases I have seen dealt with requests for an exemption because of medical reasons.
Another issue that arises out of mandatory COVID vaccine policies is what to do with proof of vaccination. Does an employer keep a copy or does it destroy this personal health record after reviewing it? The OHRC policy does not answer this question. Instead, it states: “Policies should also include rights-based legal safeguards for the appropriate use and handling of personal health information.” Many mandatory COVID policies have recently come into effect or will come into effect in the next month or so. A legal issue that will arise shortly is what to do with those employees who refuse to comply with the policy by the deadline. For example, is a refusal to comply with the policy just cause for termination? Does the answer to this question change if the employee offers to take rapid tests to confirm they don’t have COVID before entering the workplace? Does the answer to the question change if the employee asks to continue working remotely if the employee has been able to perform all job duties from home over the last 18 months?
Latest posts by Doug MacLeod, MacLeod Law Firm (see all)
- Doug’s top 5 employment law stories of 2021 - December 14, 2021
- Enforcing mandatory COVID vaccination policies - November 9, 2021
- Human rights exemptions to mandatory COVID vaccine policies - October 14, 2021