Photo credit: Healium
At this juncture, the temporary pandemic rules under the regulation to the Ontario Employment Standards Act, 2000 (ESA) continue to be in place until January 1, 2022 for unpaid IDEL (Infectious Disease Emergency Leave) through the most recent extension of the “COVID-19 period”, and paid Ontario COVID-19 Worker Income Benefit to December 31, 2021.
Under the first, the constructive dismissal conundrum has been delayed for full consideration (again) until January 2, 2022. Meaning as of January 2, 2022 employees who were deemed to be on an IDEL no longer are and will have their temporary lay-off clock reset to January 2, 2022 when all of the regular rules regarding temporary layoffs under the ESA resume. In the interim employers are hopeful that either the Court of Appeal or the Ontario legislature will provide much needed clarification to assist with addressing the mixed decisions of our Superior Court judges and what may be a tremendous onslaught of constructive dismissal claims by non-unionized employees.
Given the pause placed on the foreboding possibility of a tsunami of constructive dismissal claims, the current significant issue in the minds of many Ontario employers is whether or not their employees qualify for a medical exemption to their mandatory vaccination policies and how to respond to such requests for accommodation on the basis of a disability or for a medical reason.
Thankfully, what also might have resulted in a tsunami of requests for such accommodation has been avoided through the proactive publications of the Ontario Ministry of Health, the Human Rights Commission, and the applicable guidelines under the regulations. These publications make it clear that medical exemptions will be rare, and their clarity has dammed much of the potential difficulties relating to responding to such requests in response to workplace mandatory vaccination policies that employers are currently in the process of rolling out, or have recently rolled out.
What is the test applicable for a medical exemption?
To be exempt from such a policy the employee must currently qualify for a medical exemption to being vaccinated by ANY of the COVID-19 vaccines.
Given there is more than one vaccine – it is highly unlikely and very rare that an employee will qualify for a medical exemption to each of the vaccines as they do not all have the same ingredients.
What is sufficient evidence to qualify?
First, only one of three categories of medical practitioners’ medical notes are acceptable in relation to providing medical documentation to support a medical exemption. Further, if the exemption is based on an allergic reaction, to qualify the employee must have had an expert consultation with a specialist and:
- had a documented and evaluated allergy by an allergist/immunologist to the vaccine or an ingredient in it;
- had a discussion with an allergist/immunologist on potential options for immunization with the same or alternative vaccine. Such an assessment is to be based on investigations/diagnosis, individualized risk-benefit analysis, and recommendations/options for immunization by the specialist;
and
- the allergist/immunologist must determine that the employee is unable to receive any COVID-19 vaccine.
Second, the medical note must be based on current medical information available. Meaning that updated medical assessments and notes must be periodically undertaken and provided to the employer as the context and evidence on COVID-19 vaccines evolves and medical guidance is updated.
Third, clear medical documentation must expressly be connected to one or more COVID-19 vaccines. If the medical note addresses vaccines generally, that is insufficient. Meaning, for there to be an exemption the medical note MUST clearly satisfy three requirements. These requirements are that it must:
– indicate the clear medical reason why the individual cannot be fully vaccinated against COVID-19;
– be based on clear medical documentation specifically addressing the current COVID-19 vaccinations themselves and not to any other vaccinations; and
– cover an appropriate effective timeframe, including the period that the employee is seeking access to an organization’s facilities or work functions.
Based on the most current medical information available, most individuals can at least be immunized with one of COVID-19 vaccines safely without a duty to accommodate under the Code/exception to employer’s workplace mandatory vaccination policies being triggered.
As such, employers who wish to maintain the protection from liability afforded to them under the Supporting Ontario’s Recovery Act, 2020, will need to ensure they are and keep up to date on current laws and public guidelines when responding to such requests an in applying their workplace policies.
Sheryl L. Johnson brings a proactive, creative, and vibrant attitude to her labour, employment and human resource law practice. Sheryl has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment and labour law, including for example construction labour law, employment related civil wrongful dismissal, human rights, and labour board litigation; privacy, governance, statutory and regulatory compliance, and executive compensation matters; as well as conducting workplace training and workplace investigations. Sheryl is also an avid educator and writer, including authoring a bi-weekly business column in The Niagara Independent and the text: Sexual Harassment in Canada: A Guide for Understanding and Prevention. Sheryl enjoys in her free time giving back to the Niagara community. She is a member of the WIN Council, Chair of the Board of Directors for the Niagara Jazz Festival, Vice-President of the Board of Directors for the YWCA Niagara Region, Secretary of Big Brothers Big Sisters of Niagara Falls Board of Directors, a board member of the Niagara Home Builders Association, and a board member of the Women in Construction group of the Niagara Construction Association.
You can connect with her on LinkedIn or contact her at sljohnson@sullivanmahoney.com.
