No mere coincidence

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Doug Downey MPP

Ontario’s Attorney General Doug Downey, the minister responsible for overseeing the Ontario Human Rights Commission (OHRC). On the day that the province’s vaccine passport system came into effect, OHRC released a statement in support of the system’s implementation in limited circumstances. Photo credit: Twitter/Douglas Downey

 

The Commission asserts that employers must accommodate people who have not been vaccinated for a valid reason such as disability or a medical exemption, including severe allergy to the vaccines. Most interestingly in this policy statement nowhere does the Commission use its “to the point of undue hardship” test that is normally applicable; instead, it states: “unless it would significantly interfere with people’s health and safety”. This substitution by the Commission provides a very broad exception to an employer’s normal duty to accommodate standards.

Vaccination requirements generally permissible under the Code:

While receiving a COVID-19 vaccine remains voluntary, 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 (Code) as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. This applies to all organizations.

Why?

The Commission explains the reason as being the necessity of upholding individual human rights while trying to collectively protect the general public, which has been a challenge throughout the pandemic. In this regard, the Commission further explains that human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19. As such, organizations must attempt to balance the rights of people who have not been vaccinated due to a Code-protected ground, such as disability, while ensuring individual and collective rights to health and safety.

How? 

The Commission asserts that employers must accommodate people who have not been vaccinated for a valid reason such as disability or a medial exemption, including severe allergy to the vaccines. Most interestingly in this policy statement nowhere does the Commission use it “to the point of undue hardship” test that is normally applicable; instead, it states: “unless it would significantly interfere with people’s health and safety”. This substitution by the Commission provides a very broad exception to an employer’s normal duty to accommodate standards. 

Also interestingly, the normal standard of employers and service providers accepting requests for accommodation on their face in a good faith manner without proof at the outset, as they were required to do in relation to face masks, has been replaced with the express standard that: “People with a medical exemption must obtain proof in writing from a physician, registered nurse or a nurse practitioner” (i.e., what the regulations Guidelines expressly provide for; see my last article) with no limit on individuals’ access to any services where they are unable to be vaccinated for medical reasons.

Additionally, the Commission in this policy statement fills in some of the gaps under the Province’s regulatory regime with the following guidance:  

  • written proof of a medical exception “may be required until recognized medical exemptions can be integrated as part of a digital vaccine certificate” 
  • the result that people are denied equal access to employment or services on Code grounds under such policies should: (a) only be used for the shortest possible length of time; and (b) regularly reviewed and updated to: (i) match the most current pandemic conditions; and (ii) reflect up-to-date evidence and public health guidance to ensure continued applicability.
  • Policies should include privacy safeguards for the appropriate use and handling of personal health information. 
  • Exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code.
  • Organizations with a proven need for COVID-related health and safety requirements might put COVID testing in place as an option for accommodating people who are unable to receive the vaccine. (While the Commission does not provide guidance on what constitutes a “proven need”, a good guide is what is reasonable and proportionate to the relative risk of COVID transmission in the individual context of your workplace).   
  • While receiving a COVID-19 vaccine is voluntary, choosing not to be vaccinated based on: (a) a personal preference does not establish the right to accommodation under the Code; and (b) a singular belief against vaccinations or masks does not amount to a creed within the meaning of the Code.
  • Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification, and/or COVID testing requirements because the duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship during a pandemic.

What about organizations not covered by the Guidelines?

The policy statement also brings such organizations into scope and provides the following guidance for them: 

  • Organizations who wish to mandate vaccines and aren’t covered by the regulations are encouraged to use the provincial proof of vaccine certificate with the written documentation showing medical inability to receive the vaccine as their way of meeting the duty to accommodate.
  • Organizations with a proven need for COVID-related health and safety requirements might put COVID testing in place as an alternative to mandatory vaccinations. (As always, the Commission supports organizations covering the costs of the medical documentation needed for such accommodation – here being the COVID testing as part of the duty to accommodate; which is very rarely followed guidance).

What this policy statement signals is the current state of our public values. Such values necessarily influence judicial opinions and decisions.

Doug Downey MPP

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