As of September 22, 2021, Ontarians must be fully vaccinated and provide proof of vaccination and photo ID to access certain public settings and facilities. In response to the requirement, the Ontario Human Rights Commission (the “OHRC”) published a Policy Statement (“Policy”) clarifying the implications of vaccination mandates on human rights as it relates to the provincial mandate and generally for all organizations.
Vaccine Requirements are “Generally Permissible”
In the Policy, the OHRC takes the view that proof of vaccination requirements are “generally permissible” under the Human Rights Code (the “Code”) as long as protections are put in place to ensure that those who cannot be vaccinated for Code-related reasons are reasonably accommodated. In doing so, the Policy notes that “this applies to all organizations” and emphasizes the importance of balancing the rights of people who have not been vaccinated due to a Code-protected ground with individual and collective rights to health and safety.
While “generally permissible”, the Policy states that proof of vaccination or mandatory vaccination policies are only justifiable during a pandemic and should only be used for the shortest possible period of time. They should be regularly reviewed and updated to match the most current pandemic conditions, evidence, and public health guidance. In addition, such policies should have safeguards in place to ensure safe handling and use of personal health information.
Accommodation for Medical Reasons
The OHRC confirms that organizations have an obligation to reasonably accommodate people who are unable to be vaccinated due to Code-related reasons unless the accommodation would “significantly interfere with people’s health and safety”. A reasonable accommodation might include exempting individuals with a documented medical reason for not being able to receive the vaccine. However, it would appear that the range of possible medical exemptions is very narrow.
While individuals with valid medical documentation may be exempt from mandatory proof and vaccination requirements, organizations may still request such individuals to participate in alternative screening measures (i.e., temperature testing, regular COVID-19 testing) for health and safety purposes. Although not always necessary, the OHRC recommends that organizations considering alternative screening measures should cover the costs of such measures as part of their duty to accommodate under the Code.
Creed and Personal Preference
The OHRC recognized the voluntary nature of receiving the COVID-19 vaccine but at the same time provided a clear statement that individuals who chose not to be vaccinated based on personal preferences do not have the right to accommodation under the Code. The Policy firmly states that personal preferences or singular beliefs against vaccinations (or masks) do not amount to “creed” within the meaning of the Code.
Access and Accessibility
Although access to vaccines are fairly widespread in Ontario, the OHRC advised organizations to be cognizant of barriers in accessing vaccinations and proof of vaccinations. In particular, the OHRC recommends that organizations take proactive steps to ensure that their vaccine mandates or proof of vaccination policies do not disproportionately affect vulnerable and/or disadvantaged members of society.
It also emphasized that digital proof of vaccine certificates (including the pending provincial vaccine passport) should be designed to be fully accessible to adaptive technology, including for smartphone users with disabilities, in accordance with the Accessibility for Ontarians with Disabilities Act.
The OHRC’s Policy Statement is welcoming news for employers contemplating implementing proof of vaccination or mandatory vaccination policies. Not only does it confirm an employer’s ability to implement and enforce such policies, but it also confirms that protection/exemption from such mandates is limited to medical grounds.
As a best practice, employers should always be mindful of their obligations under human rights legislation and consider requests to be exempt from vaccination mandates on a case-by-case basis. Further, vaccination status, proof, and similar COVID-19-related information are considered sensitive personal information that is often subject to privacy legislation. To ensure compliance with applicable privacy rules, employers should notify employees of their mandatory vaccination and proof of vaccination mandates, obtain consent, and have in place stringent safeguards to limit access to employee information.
While helpful, the OHRC’s Policy is only guidance—it does not have the legal force and effect of a court or tribunal decision, nor of legislation. However, policies issued by the OHRC are influential and are generally given significant weight by courts and tribunals (across Canada) addressing human rights-related issues in complaints/applications. We expect to hear more on this topic in the coming months as cases objecting to vaccination mandates due to protected grounds start to make their way through the court/tribunal-system.
British Columbia’s Office of the Human Rights Commissioner has released similar guidance addressing human rights and proof of vaccination mandates in British Columbia.