As of September 22, 2021, the Ontario government is requiring individuals to prove they are fully vaccinated in order to access certain businesses and public settings. These public settings include concert venues, movie theatres, convention centers, restaurants, nightclubs and casinos, among others. However, not everyone in Ontario has received the vaccination, and for a number of reasons. Some cannot receive the vaccination due to medical or religious reasons. Some simply do not want to take the vaccine and do not believe the government has the right to force them to do so.
Many who have not received the vaccine believe these mandatory vaccination policies are discriminatory or contrary to their human rights. However, they may be out of luck. According to the recent policy statement of the Ontario Human Rights Commission, such policies may not be discriminatory at all.
Generally Permissible: Reasonable Accommodations
According to the Commission, vaccine policies that are implemented to protect people at work or when receiving services are generally permissible as long as those who cannot receive the vaccine for Human Rights Code-related purposes are reasonably accommodated. By “Code-related purposes”, the Commission refers specifically to people who cannot be vaccinated due to medical or disability-related reasons.
The Ontario government has permitted exemptions to those who provide a written document supplied by a physician, registered nurse extended class or nurse practitioner explaining that the individual is exempt for a medical reason. According to the Commission, this is a reasonable accommodation.
Personal Preferences Not Protected
Significantly, according to the Commission, those who have refused the vaccine based only on personal preference do not have a right to accommodation under the Code. This is notwithstanding the fact the vaccine remains voluntary. Although the Code prohibits discrimination based on “Creed”, no tribunal or court decision has yet found a singular belief against vaccination or masks to amount to a creed. Even if it did, that would not necessarily grant these people exemptions from vaccine mandates. “The duty to accommodate”, says the Commission, “can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.”
What Could this Mean for Employees?
The Ontario government is not the only one implementing vaccine policies. Many employers are requiring their employees be similarly vaccinated. Employees who refuse the vaccine face the risk of being terminated for their decision. Many of those employees had hoped to challenge such vaccine policies on human rights grounds. That avenue now looks rather gloomy. The Human Rights Commission has plainly said that vaccine mandates are generally permissible, so far as they provide reasonable accommodations to those who cannot get the vaccine for Code-related reasons. Those reasons do not include personal preference. It is likely that this approach, taken by the Commission in relation to the Ontario government’s vaccine policy, will be similarly applicable in the employment context. Simply not wanting to take the vaccine, as a personal choice, will probably be insufficient. Those who hope to challenge their employer’s vaccine policies will likely have to look elsewhere than personal preference. Not wanting to take the vaccine will likely be insufficient without some Code-related purpose, such as a disability, backing you up.
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