On September 22, 2021, the Ontario Human Rights Commission (the “OHRC”) released a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates. The OHRC’s statement provides welcome guidance for businesses looking to implement proof of vaccination requirements for workers and customers.
Vaccine Requirements are “Generally Permissible”
In its statement, the OHRC takes the view that proof of vaccination requirements are “generally permissible” under the Human Rights Code (the “Code”) in order to protect people at work or when receiving services, as long as people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. The OHRC does acknowledge that such policies may only be justifiable during a pandemic and that they should only be used “for the shortest possible length of time.”
The statement also clarifies the type of accommodation obligations an employer may have pursuant to a vaccination policy. For example, if an organization requires employees who are medically unable to get vaccinated to undergo regular rapid antigen testing, it is the organization, not the individual, who should cover the cost of such testing as part of the employer’s duty to accommodate.
Creed and Personal Preference
Many employers have inquired as to whether an individual who chooses not to be vaccinated on the basis of personal preference is entitled to accommodation under the Code on the basis of creed. Although the Code prohibits discrimination based on creed, the OHRC takes the position that a person who chooses not to be vaccinated on the basis of personal preference does not have the right to accommodation under the Code because personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
The policy statement also addresses related issues which arise from vaccination mandates, including the need to ensure appropriate privacy protections, the existence of barriers to accessing vaccination and testing, and considerations regarding the enforcement of vaccination policies.
While the OHRC’s policy statements are not binding on tribunals or courts, decision-makers will often give them significant weight.