In the last month or two many (if not most) organizations have introduced a mandatory COVID vaccination or/or a COVID negative policy. A mandatory vaccination policy requires an employee to get double vaccinated, whereas a COVID negative policy requires an employee to regularly test negative for COVID.
A mandatory COVID vaccine policy must exempt those who qualify for an exemption for medical reasons or because of creed under the Ontario Human Rights Code.
The Ontario Human Rights Commission recently issued its policy statement on COVID 19 vaccine mandates and proof of vaccine certificates. It states, in part: “…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.”
What are Code-related reasons? The Policy says for medical reasons (i.e. a disability) and creed. It also states that personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
So the question becomes, what disabilities require an exemption from mandatory vaccination policy?
The Ontario Ministry of Health takes the position that there are only two valid medical exemptions from COVID-19 vaccination requirements. The first would be an allergic reaction to a component of the vaccine within an individual, which must be confirmed by an allergist or immunologist. The second would be if an individual suffered myocarditis or pericarditis after the first dose of a vaccine.
So what if an employee provides a doctor’s note recommending that an employee be exempt from a mandatory COVID policy for medical reasons, but does not disclose one of these two exemptions? Normally an employer cannot require an employee to disclose a disability. The OHRC policy is silent on this issue.
The other question becomes, which creeds have a belief system that requires an exemption from a mandatory COVID vaccination policy?
According to the OHRC’s Policy on preventing discrimination in creed, “The Code does not define creed, but the courts and tribunals have often referred to religious beliefs and practices. Creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life. The following characteristics are relevant when considering if a belief system is a creed under the Code. A creed:
- Is sincerely, freely and deeply held
- Is integrally linked to a person’s identity, self-definition and fulfillment
- Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
- Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
- Has some “nexus” or connection to an organization or community that professes a shared system of belief.
Most of the human rights exemption requests I have reviewed have been for religion/creed. There is a procedural and a substantive aspect of the duty to accommodate. The procedural aspect involves the exchange of information in relation to the requested accommodation. This means you don’t have to accept the information provided if you think it is suspicious or not credible.
Many mandatory COVID policies have recently come into effect or will come into effect in the next month or so.
Some employers are terminating employees who refuse to comply. Some are placing these employees on an unpaid leave/suspension. Some employers will allow these employees to work remotely. Some are considering requiring negative COVID tests as an alternative. The response will depend, in part, on how many employees are refusing to get vaccinated and how easy it is to replace them. For example, the Quebec government extended its deadline for compliance last week because there were so many unvaccinated nurses and the health care system would have collapsed had they terminated all unvaccinated nurses.
For employees who are terminated, is a refusal to comply with a mandatory COVID vaccination policy just cause for termination? Does the answer to this question change if the employee offers to take rapid tests to confirm they don’t have COVID before entering the workplace? Does the answer to the question change if the employee asks to continue working remotely if the employee has been able to perform all job duties from home over the last 18 months?
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]