On September 22, 2021, the Ontario Human Rights Commission (OHRC) released a policy statement on the Ontario Government’s requirement to provide proof of vaccination along with photo ID to access certain public settings and facilities.
According to the policy statement, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code (the “Code”) as long as there are protections to ensure that individuals who are unable to be vaccinated on Code-related grounds (such as medical or disability-related reasons) are reasonably accommodated.
All organizations have a duty to accommodate individuals who are not able to receive the COVID-19 vaccine on Code-related grounds, unless it would significantly interfere with others’ health and safety.
The OHRC states that Individuals who are unable to receive the vaccine due to medical reasons must provide a written document, supplied by a physician (MD) or by a registered nurse extended class [RN(EC)] or nurse practitioner (NP) stating that they are exempt from vaccination for a medical reason and for how long this would apply. The written document may be required until recognized medial exemptions can be integrated into the Province’s digital vaccine certificate program (expected by October 22, 2021).
The OHRC also states that Organizations with a proven need for COVID-19 related health and safety requirements might also put COVID-19 testing in place as an alternative measure or as an option for accommodating individuals who are unable to get the vaccine for medical reasons. The OHRC recommends that organizations cover the costs of COVID-19 testing as part of the duty to accommodate.
The OHRC policy statement stipulates that proof of vaccination and vaccine mandate policies, or any testing alternatives, that result in people being denied equal access to employment or services on Code-relatedgrounds, should only be used for the shortest possible length of time. Such policies might only be justifiable during the pandemic and should be regularly reviewed and updated to match the most current pandemic conditions, and to reflect updated public health guidance.
Policies should also include rights-based legal safeguards for the appropriate use and handling of personal health information.
Importantly, the OHRC’s position is that a person who voluntarily 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.
The OHRC states that even if an individual is able to show that they were denied a service or employment because of a creed-based belief against vaccination, the duty to accommodate does not necessarily require that they be exempted from vaccine mandates, proof of vaccination, or 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.
If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing a COVID-19 vaccination policy tailored to the needs of your workplace, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.
