On September 22, 2021, the Ontario Human Rights Commission (“OHRC”) published a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates (the “Policy Statement”). The Policy Statement is applicable to all organizations within Ontario and discusses the measures implemented as part of the provincial vaccination certificate system, which requires individuals to provide proof of full vaccination along with photo identification to gain entry into certain non-essential settings (for more information regarding these requirements, please see our previous blog).
In the Policy Statement, the OHRC takes the position that mandates and requirements for proof of vaccination are “generally permissible” under the Human Rights Code (the “Code”), as long as protections are put in place to reasonably accommodate individuals who are unable to be vaccinated due to Code-related reasons.
The Policy Statement provides the following additional guidance related to vaccine mandates and proof of vaccine requirements:
Duty to Accommodate
The Policy Statement emphasizes that organizations remain obliged to provide reasonable accommodations to individuals who are unable to be vaccinated due to reasons related to protected grounds under the Code, unless the exemption would “significantly compromise health and safety amounting to undue hardship”.
Medical and Disability-Related Reasons
The Policy Statement makes clear that it is generally a reasonable accommodation within the meaning of the Code to exempt individuals with a documented medical inability to receive the vaccine.
Organizations that are not subject to Ontario’s vaccination certificate system, but that seek to mandate vaccination, are encouraged to use the provincial vaccine certificate with written documentation showing their medical inability to receive the vaccine in order to meet their accommodation obligations.
Personal Preferences and Singular Beliefs Not Protected
In the Policy Statement, the OHRC notes that while the Code prohibits discrimination based on creed, 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”. It further emphasizes that “personal preferences or singular beliefs” do not amount to a creed for the purposes of the Code.
COVID-19 Testing as an Alternative to Vaccine Requirements
The Policy Statement encourages organizations that seek to implement COVID-19 testing as an alternative to mandatory vaccination, or to accommodate individuals who are unable to receive the COVID-19 vaccine due to a Code-related exemption, to cover the costs of testing as part of their duty to accommodate.
Time Limitations
The Policy Statement suggests that proof of vaccination policies, mandates, and any COVID-19 testing alternatives might only be justified during a pandemic and should be regularly reviewed and updated to reflect changing conditions and public health guidance.
Privacy Safeguards
The Policy Statement provides that any proof of vaccination policy or vaccine mandate should include rights-based legal safeguards on the appropriate use and handling of personal health information.
Accessibility
The Policy Statement underscores the importance of ensuring equitable access to vaccines and testing, as well as consideration for the circumstances of vulnerable Ontarians. The Policy Statement also emphasizes that digital vaccine certificates must be fully accessible to adaptive technology, in accordance with the Accessibility for Ontarians with Disabilities Act.
Takeaways for Employers
The Policy Statement, while not legally binding, provides important guidance to employers regarding human rights considerations as they implement the requirements of the provincial vaccination certificate system or vaccination policies of their own. The OHRC has confirmed that employers have a duty to accommodate unvaccinated individuals who cannot receive the COVID-19 vaccine due to Code-related reasons. Importantly, the OHRC has also made clear that an individual’s personal preferences or singular beliefs regarding COVID-19 vaccinations will generally be insufficient to warrant an accommodation under the Code based on creed.
The Policy Statement also underscores the need for employers to regularly review vaccination mandates and policies to ensure compliance with the latest recommendations and requirements related to public health, privacy protections, and accessibility.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.