As you probably know by now, effective September 22, 2021, Ontarians must be fully vaccinated and provide proof of vaccination and identification in order to access certain facilities and services.
The Ontario Human Rights Commission (“OHRC“) recently released a policy statement regarding vaccine mandates and proof of vaccine certificates (the “Policy”). The Policy provides helpful guidance for employers.
Importantly, the Policy clarifies the following:
1. Generally permissible: Proof of vaccination requirements are “generally permissible” under the Ontario Human Rights Code (the “Code”) as long as there are protections to ensure those who cannot be vaccinated for reasons related to Code-protected grounds (e.g. disability) are reasonably accommodated.
2. Application: The Policy states that “this applies to all organizations” and highlights the importance of balancing competing rights, such as the rights of those who have not been vaccinated due to a Code-protected ground and the right to have a safe working environment.
3. Consider the pandemic situation: The Policy notes the unique circumstances of a pandemic. Proof of vaccination or mandatory vaccination policies “might only be justifiable during a pandemic” and “should only be used for the shortest possible length of time”. In addition, such policies should be reviewed regularly, and updated based on the current pandemic situation at the time, the evidence, and guidance from public health. Further, the policies should take into consideration any privacy concerns, and ensure the safe handling and use of personal health information.
4. Duty to accommodate: Organizations have the obligation to provide reasonable accommodation to individuals who cannot be vaccinated due to a Code-protected ground, up to the point of undue hardship. Note that employers are obligated to provide employees with reasonable accommodation, not the employee’s preferred accommodation. One of the questions to ask in the COVID-19 context is: would the accommodation “significantly interfere with people’s health and safety”?
5. What does accommodation look like?: While the range of possible medical exemptions is quite narrow, the type of accommodation may vary. An employee may be exempted from the proof of vaccination requirement due to a legitimate and documented medical reason for not being able to receive the vaccine. However, an employer may request such individuals to participate in alternative screening measures, such as undergoing regular COVID-19 testing, in order to ensure a safe working environment for all. The OHRC recommends – but does not require – employers to cover the costs of such measures as part of their duty to accommodate under the Code.
6. Personal preferences not protected: The OHRC clarifies that a personal preference to not be vaccinated does not attract protection under the Code. In other words, where an individual chooses not to be vaccinated based on a personal preference, they do not have the right to accommodation under the Code. The OHRC states that although creed is a Code-protected ground, personal preferences or singular beliefs against vaccinations and/or masks do not amount to “creed” within the meaning of the Code.
The OHRC’s Policy is great news for employers, especially those who have implemented or are looking to implement mandatory vaccination policies in the workplace. The Policy confirms that an employer can implement and enforce such vaccine mandates, and that employees are entitled to accommodation only if there is a legitimate Code-protected ground preventing them from being vaccinated.
That said, employers should be careful not to dismiss any accommodation requests out of hand. The best practice for employers would be to follow an accommodation process, consider each request for accommodation in good faith, assess whether there is a legitimate Code-protected ground or if the request is based on a personal preference, determine the need for providing reasonable accommodation, and consider various options for accommodation. Each request for accommodation should be handled on a case-by-case basis as it must be based on individual needs.
In addition, employers would be prudent to have written policies in place outlining any vaccine mandates as well as the consequences and timelines for failure to comply. For example, will employees who fail to get vaccinated continue to work with additional safety requirements (e.g., regular COVID-19 testing)? Or will they be placed on an unpaid leave of absence?
Further, employers must ensure compliance with any applicable laws, such as those concerning privacy. COVID-19 related information such as an employee’s vaccination status, proof of vaccination, and medical documentation showing they cannot be vaccinated, are all considered to be sensitive personal information. There should be safeguards in place to ensure access to such confidential information is limited within the workplace.
By Nadia Zaman
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