Mandatory Vaccination in the Workplace and an Employer’s Duty to Accommodate

In response to the mandatory vaccination announcement made by the Ontario government on September 22, 2021, the Ontario Human Rights Commission (OHRC) has published a Policy Statement breaking down the implication of the vaccine mandate on employees. While the vaccine is voluntary, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or those providing services is generally permissible under the Human Rights Code, R.S.O. 1990, c. H.19 (code) if alternative accommodations are permitted. The policy notes that “this applies to all organizations” and emphasizes the importance of balancing the right of those who have not been vaccinated based on code-protected grounds.

Accommodating for Medical Reasons

The Code require employers to accommodate employees who are unable to receive the vaccine for medical or disability-related reasons, unless the accommodation would “significantly interfere with people’s health and safety”. Employees looking to be accommodated must provide a written document from their physician or registered nurse, exempting them for medical reasons from being vaccinated. The OHRC takes the position that exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code.

Employers may also accommodate by putting COVID testing in place as an alternative to vaccination or as an option for accommodating people who are unable to receive the vaccine for medical reasons. In this instance, the employer would be required to cover the cost of COVID testing as part of the duty to accommodate.

The Policy clarifies that proof of vaccination or mandatory vaccination policies are only justified during a pandemic and should only be used for the shortest time possible. The employer should regularly review and update their policies in accordance with the most current pandemic conditions, evidence, and public health guidelines.

Accommodating for Creed (Religion) and Personal Preference

The OHRC recognized the voluntary nature of receiving the COVID-19 vaccine but 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 of accommodation under the Code. Personal preferences do not amount to creed for the purposes of the Code.

Access and Accessibility

While the vaccine may be readily available across Ontario, the OHRC advises employers to be considerate of barriers an employee may face in accessing vaccinations and proof of vaccination. Some barriers include language, age, low-wage, undocumented individuals, and individuals who have faced discrimination or traumatic experiences while receiving health care. The OHRC recommends that employers take proactive steps to ensure the company’s vaccine mandates or proof of vaccination policies do not disproportionately affect vulnerable or disadvantaged employees.

Take Away

The OHRC’s policy is a helpful document outlining important information for the public however it does not have the legal force and effect of legislation, a court, or a tribunal decision. That being said the Policy issued by the OHRC is given significant wright by courts and tribunals when addressing human rights related issues. We can expect to hear more in the coming months and year as more cases make their way through the court and tribunal system.

**A special thanks to Kateryna Borodenko, student at Prior Law, for her fabulous assistance in drafting this blog post!**

Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving. I encourage you to reach out with any specific questions.

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