On September 22, 2021, the Ontario Human Rights Commission (the “Commission”) released a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates (the “Policy Statement”). We have discussed vaccine mandates for certain sectors and the requirement to provide proof vaccination to access certain businesses and settings in previous Focus Alerts.
Permissibility of Vaccination Requirements
The Commission’s position is that while COVID-19 vaccination is voluntary, mandating and requiring proof of vaccination when receiving services or to protect people at work is generally permissible under the Ontario Human Rights Code (the “Code”) for all organizations, so long as those who cannot be vaccinated for Code-related reasons can be reasonably accommodated.
Personal Preferences and Singular Beliefs Regarding COVID-19 Vaccination
Importantly, the Commission makes the following statement:
The OHRC and relevant human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.
Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC 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.
While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, 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.
Duty to Accommodate for Medical Reasons
The Commission notes that the organizations have a duty to accommodate those who are unable to receive the COVID-19 vaccine for medical or disability-related reasons “unless it would significantly interfere with people’s health and safety.”
Under Ontario’s proof of vaccination system, those who have a medical exemption to receiving the vaccine must provide written documentation in accordance with Regulations and the guidance of the Ministry of Health. The Commission’s position is that “exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code.”
The Commission encourages organizations that are not included in the list of settings stipulated in the Regulations but wish to mandate vaccines to use the provincial proof of vaccine certificate with the written documentation showing medical inability to receive the vaccine as their way of meeting the duty to accommodate where needed.
COVID-19 Testing as an Alternative to Vaccine Requirements
For organizations not covered by the settings in the Regulations but that have a proven need for COVID-19-related health and safety requirements, the Commission suggests putting COVID-19 testing in place as an alternative to mandatory vaccination, or as a means to accommodate individuals who cannot receive the vaccine for medical reasons. The Commission indicates that organizations should pay for the cost of COVID-19 testing as part of the duty to accommodate.
Other Considerations
The Commission also provides some words of caution in relation to vaccine mandates and the proof of vaccination system, including:
- Ensuring that digital proof of vaccine certificates is fully accessible for users with disabilities in accordance with the Accessibility for Ontarians with Disabilities Act regulations;
- That the proof of vaccination regime ensures that vaccines and testing are accessible for vulnerable Ontarians who face barriers to equitable vaccine access and testing;
- That the proof of vaccine and vaccine mandate policies, or COVID-19 testing alternatives, resulting in people being denied equal access to employment or services on Code-related grounds should only be used for the shortest amount of time possible. These policies may only be justifiable during a pandemic;
- Policies should include rights-based legal safeguards to ensure that personal health information is appropriately used and handled;
- Governments and organizations are urged to take proactive steps to ensure that the enforcement of these requirements does not disproportionately target or criminalize Indigenous peoples, Black and other racialized communities, people who are experiencing homelessness, or people with mental health disabilities and/or addictions.
In Our View
The Commission’s policy statement confirms the reasonableness of mandating vaccinations and proof of vaccinations, so long as Code-related needs can be accommodated. However, the Commission also recognizes the context of the COVID-19 pandemic and confirms that the duty to accommodate can be limited where health and safety impacts are significant.
The Commission provides welcome clarification about voluntary refusal to vaccinate and claims for accommodation on the basis of creed. It is clear that personal preferences and singular beliefs will not be protected under the Code. It is also clear that health and safety is paramount, and even a creed-related refusal to vaccinate does not necessarily exempt someone from vaccine mandates, certification, or testing requirements if health and safety would be significantly compromised.
While the policy statement does contain some helpful principles and guidance for employers, its provisions are general. Issues of accommodation are always fact-specific and can be complex. Employers faced with issues of accommodation in relation to vaccination mandates or proof of vaccination are urged to seek legal advice in order to fully understand their rights and obligations.
For more information, please contact Jennifer Birrell at 613-940-2740, Raquel Chisholm at 613-940-2755, or J.D. Sharp at 613-940-2739.
