OHRC policy provides framework for employer vaccine mandates

Ontarian employees will need more than a personal preference against Covid-19 vaccines to defy workplace mandates, says Toronto civil litigator Stephany Mandin

Since Sept. 22, Doug Ford’s provincial government has required patrons to show proof of vaccination with photo identification before entering certain public settings, including restaurants, bars gyms and movie theatres. Meanwhile, plans are in place to develop a digital certificate verifying vaccination status by Oct. 22.

In response, the Ontario Human Rights Commission issued a policy statement backing vaccine requirements to protect the health of workers and patrons as “generally permissible” under the Human Rights Code, as long as they account for those unable to be vaccinated.

While the Ford administration’s policy could still face legal action challenging its constitutionality under the Charter, Mandin, principal of Mandin Law, says the OHRC’s policy statement is particularly useful for employers and other non-government entities dealing with the day-to-day reality of implementing their own pandemic-related public health measures.

“As these policies trickle down to employers in the private sector, they would be challenged under the Human Rights Code, rather than the Charter, which is why it’s good to have the OHRC giving us an idea of what some of the parameters are,” she says.

As Covid case levels level off, Mandin says more employers are following the lead of the provincial government, imposing new rules at the same time as they welcome employees back to the office in person after months of remote work.  

“Employers are seeking proof of vaccination or negative Covid tests or requiring masks, and some employees are claiming exemptions, so businesses are asking whether they have to accommodate them,” she adds.

The answers to key questions can be found in the OHRC’s policy. For example, the statement explains that organizations based in the province have a duty to accommodate those who are unable to take a vaccine for medical or disability-related reasons under the Code, unless it would significantly interfere with people’s health and safety.

Employers are encouraged to piggyback on the built-in accommodation measures in the province’s vaccine certificate program, which exempts individuals who provide a written document confirming the medical reason for their inability to receive the vaccine.

According to the statement, regular testing paid by the employer could work as an alternative accommodation option in working environments with a proven need for Covid health and safety requirements.

“What’s interesting is the statement goes further and says that personal preferences against being vaccinated are not protected and do not require accommodation,” Mandin says. “That’s significant to employers who are looking to stay under the umbrella of public health and safety, while also meeting their obligations under the Code.”

While the Human Rights Code prohibits discrimination based on a person’s creed, the OHRC statement says that it is not aware of any tribunal or court decision that has found a “singular belief against vaccinations or masks” met the definition of a creed.

Still, the OHRC warns that any Covid-related policies that result in unequal access to employment or services should only be used for the shortest possible time, and that they may “only be justifiable during a pandemic.”

Mandin says the fast-changing nature of the Covid situation in Ontario requires employers to review and update their pandemic measures frequently to ensure they remain in compliance with the Code.

“As more people get vaccinated, it will become a less pressing public health issue, so it’s a moving target,” she adds.