Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Ontario’s proof of vaccine requirement for patrons of certain indoor public settings commenced on September 22, 2021. In response to this new regime, as well as to the recent trend among employers to implement vaccination policies in their workplaces, the Ontario Human Rights Commission (OHRC) has released a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates (Policy). The Policy provides useful guidance for all employers in the province.
General Permissibility of Vaccination Requirements
In the Policy, the OHRC states that it considers requiring proof of vaccination for employees and those receiving services generally permissible under Ontario’s Human Rights Code (Code), provided protections are put in place to ensure that those who cannot be vaccinated for Code-related reasons are reasonably accommodated. The Policy emphasizes that it is important for organizations to balance the rights of people who have not been vaccinated due to a Code-protected ground, against individual and collective rights to health and safety.
Accommodation for Medical Reasons
The Policy acknowledges that it is a reasonable accommodation within the meaning of the Code to exempt individuals who have a documented medical inability to receive the vaccine, “unless it would significantly interfere with people’s health and safety.”
Personal Preferences and Singular Beliefs Unprotected
The Policy states that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code, and that personal preferences or singular beliefs do not amount to “creed,” which is protected under the Code.
Organizations to which Ontario’s Proof of Vaccine Regime Does Not Apply
The Policy encourages organizations that wish to mandate vaccination but are not on the list of settings to which Ontario’s proof of vaccination regime applies, to use the provincial proof of vaccine certificate and documentation of medical inability to receive the vaccine to meet the duty to accommodate.
Accessibility to Adaptive Technology
The Policy stresses that digital proof of vaccine certificates must be designed to be fully accessible to adaptive technology, including for smart phone users with disabilities, in accordance with the regulations under the Accessibility for Ontarians with Disabilities Act.
COVID Testing as an Alternative to Vaccine Requirements
After noting that many organizations are not on the list of settings to which Ontario’s proof of vaccine regime applies, the Policy suggests that organizations that have a proven need for COVID-related health and safety requirements might use COVID testing as an alternative to mandatory vaccination, or to accommodate those unable to be vaccinated for medical reasons. If COVID testing is used for purposes of accommodation, the OHRC recommends that testing costs be covered by the organization.
The Policy emphasizes that proof of vaccine and vaccine mandate policies should only be used for the shortest possible duration, be regularly reviewed and updated to match pandemic conditions, and reflect up-to-date evidence and public health guidance. The Policy suggests that proof of vaccine and vaccine mandate policies might only be justifiable during the pandemic.
The Policy provides that proof of vaccine and vaccine mandate policies should ensure that personal health information is appropriately used and handled.
The Policy emphasizes that any vaccine mandate or proof of vaccination policy must ensure access to vaccines and testing for vulnerable Ontarians.
The Policy urges governments and organizations to take proactive steps to ensure that the enforcement of vaccine mandates and proof of vaccination policies do not disproportionately target or criminalize Indigenous peoples, Black and other racialized communities, or those who are homeless or have mental health disabilities and/or addictions.
Bottom Line for Employers
The Policy provides useful guidance to employers in Ontario regarding how they can respect human rights when implementing Ontario’s proof of vaccine regime for patrons of certain indoor public settings, or their own vaccination policies for employees. A key point of note coming out of the Policy is the OHRC’s position that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code, and that personal preferences or singular beliefs do not amount to creed for purposes of the Code.
Employers that are required to implement Ontario’s proof of vaccine regime for patrons are encouraged to reach out to experienced employment counsel with any questions they may have about its requirements. Employers that wish to implement their own vaccination policies, are encouraged to seek the assistance of experienced employment counsel in drafting and implementing such policies.