Ontario Human Rights Commission provides guidance on COVID vaccination policies
The Ontario Human Rights Commission, the agency that promotes, protects and advances the rights under the Ontario Human Rights Code, has issued a policy statement outlining its position on COVID-19 employer vaccination mandates and vaccine certificates in Ontario.
“Vaccination requirements generally permissible”
The Commission has taken the position that mandating and requiring proof of vaccination to protect employees is generally permissible under the Code. The caveat to this is that such policies should have protections in place to make sure that people who are unvaccinated for Code-related reasons (e.g. disability or creed) are reasonably accommodated.
“Duty to accommodate for medical reasons”
The Commission stated that exempting individuals with a documented medical inability (i.e. from a physician, registered nurse extended class or nurse practitioner) to receive the vaccine is a reasonable accommodation within the meaning of the Code.
“COVID testing as an alternative”
The Commission confirmed that organizations with a proven need for COVID-related health and safety requirements should consider implementing regular COVID testing as an alternative to vaccination or as an accommodation. Organizations should consider their own circumstances to determine whether testing is necessary for health and safety reasons. The Commission opined that organizations requiring testing should cover the cost as a party of their duty to accommodate.
“Personal preferences and singular beliefs not protected”
The Commission confirmed its position is that a person who chooses not to be vaccinated based on personal preference (which we believe would include health concerns not supported by medical evidence) does not have the right to accommodation under the Code. The Code prohibits discrimination based on creed, which includes religious or non-religious belief systems that influence a person’s identity, worldview and way of life.
In their statement, the Commission distinguished personal preferences and singular beliefs about vaccines from a “creed” as used in the Code. Moreover, the Commission stated that even if a person could show that they had a creed-based belief against vaccinations, the duty to accommodate does not necessarily require that they be exempted from vaccines, certificates or COVID testing requirements. Organizations need to accommodate to the point of undue hardship. Organizations may limit the accommodation for these individuals if it would significantly compromise the health and safety of others to the point of undue hardship.
Conclusion
The Commission’s policy statement provides some comfort to employers who have been implementing vaccination policies. As many of our readers know, human rights considerations are a primary concern when implementing vaccination policies. It is reassuring to see the Commission acknowledge that the most common grounds for refusing to vaccinate such as personal preference (which may be based on unsubstantiated health concerns) do not constitute protected grounds under the Human Rights Code. We believe the Commission’s policy reflects the law elsewhere in Canada.
If you want more information on this topic, or have questions about implementing a COVID vaccination policy, you can contact us at:
Geoffrey Howard: ghoward@howardlaw.ca
604 424-9686
Sebastian Chern: schern@howardlaw.ca
604 424-9688
