With the Province of Ontario announcing its policy with respect to determining the vaccination status of clients, customers and patrons of select industries, many employers are considering if they are within their legal rights to implement such a policy, while unvaccinated employees wonder what potential repercussions they may face if a mandatory vaccination policy is put in place and they refuse the vaccine.
This topic has been made even more prevalent in light of the recent directive from Dr. Kieran Moore, Ontario’s Chief Medical Officer of Health. Issued pursuant to the Health Protection and Promotion Act, this directive mandated hospitals and community and home-care providers to have a strict policy regarding COVID-19 vaccinations in place effective September 7, 2021 for all employees, staff, contractors, students, and volunteers. Ambulance services are required to have policies in place for paramedics and certain organizations in the post-secondary education sector are required to have such policies as well. This directive is in response to the latest data that shows the majority of recently reported infections of COVID-19 are among unvaccinated or only partially vaccinated persons. At a minimum, the directive requires policies to include requirements for employees to be fully vaccinated, a medical reason for not being vaccinated, or completion of a COVID-19 vaccination educational session prior to declining vaccination for any reason that is not medical. This directive does not make COVID-19 vaccinations compulsory, however, those who decline the vaccine will be required to be regularly tested for the virus.
Ontario businesses and organizations are required to comply with this directive.
For example, the Province of Ontario recently passed a regulation (O. Reg. 577/21) under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 requiring businesses and organizations to “operate the business or organization in compliance with any advice, recommendations, and instructions issued by the Office of the Chief Medical Officer of Health, or by a medical officer of health after consultation with the Office of the Chief Medical Officer of Health,
(a) requiring the business or organization to establish, implement and ensure compliance with a COVID-19 vaccination policy; or
(b) setting out the precautions and procedures that the business or organization must include in its COVID-19 vaccination policy.”
Several employers who are not captured by this directive are instituting mandatory vaccination policies in the workplace as well. As more employers implement workplace vaccination policies, employers, employees, and trade unions alike are left wondering what sort of mandatory vaccination policies may be implemented in their workplaces and how this may affect them.
Employers are under a positive obligation to protect the health and safety of their workers and are required pursuant to section 25(2)(h) of the Occupational Health and Safety Act to take all reasonable measures to do so. Courts have held that this applies even if it cannot be established with scientific certainty that there is a cause and effect relationship between the activity and the harm. For example, the Court in Ontario Nurses’ Assn et al v Eatonville CareCentre Facility Inc., considered that COVID-19 is a threat to the health and safety of employees and noted that the entire purpose of the precautionary principle is to take precautions against the unknown. Therefore, by having a policy pertaining to vaccinations and/or testing at the workplace, an employer is arguably complying with their duty to take all available precautions against the spread of COVID-19 at the workplace.
As such, employers who wish to implement a mandatory vaccination policy and require proof of vaccination status from their employees are within their rights to do so, as long as this does not contradict the provisions of any applicable collective agreement and the employer implements such a policy in compliance with relevant human rights legislation. Workplaces with vulnerable employees, clients, and patients, should assess risk level and necessity of a vaccine mandate. With limited case law on COVID-19 vaccine policies, workplaces may defer to similar influenza vaccination arbitration decisions. Historically, mandatory influenza vaccination policies have been allowed by arbitrators in private institutions. In order for such a rule to be introduced, the rule or policy must be:
• Consistent with the collective agreement;
• Reasonable;
• Clear and Unequivocal;
• Brought to the attention of the affected employees including information as it relates to the potential of disciplinary measures in cases of non-compliance;
• Consistently enforced by the employer from the time of introduction.
An employee seeking an exemption from a vaccination policy for human rights reasons can be required to provide evidence of the grounds of their exemption to their employer. Examples of characteristics that are protected by the Human Rights Code (hereinafter “the Code”) that may arise in the context of vaccination are disability, pregnancy, family status, and religion. Providing an employer with a letter from an employee’s doctor or religious leader outlining why they cannot receive the COVID-19 vaccination would likely suffice as proof of such a characteristic. Many individuals have valid medical conditions, religious views, or political beliefs, however the condition or belief alone does not entitle a person to be accommodated by their employer as required by the Code.
Recent decisions of the British Columbia Human Rights Tribunal provide some insight into how future challenges in Ontario may be determined. In Complainant v Dr Bonnie Henry, the complainant stated that he had asthma and did not want services limited because of what he alleged was an “experimental COVID vaccine.” The Tribunal indicated that, while asthma could conceivably constitute a disability protected by the Code, there was no adverse impact on the complainant with a connection to his disability. The Tribunal explained that “an ideological opposition to or distrust of the vaccine would not be enough.” Instead, a person must present facts that establish a connection between the medical condition and not being fully vaccinated, such as an allergy or disability that prevents the person from being able to get vaccinated.
A complaint was filed in Complainant obo Class of Persons v John Horgan on the basis of the protected characteristic of political belief in the area of employment. The complaint was on behalf of a class of people who “are opposed to being forced into getting the COVID-19 Vaccination and getting our basic human rights and freedoms stripped from us.” The Tribunal indicated that Code provides protection for a person from adverse impacts in their employment based on political belief. However, there are no allegations in this case of an actual adverse impact experienced by any person in the class in their employment. As such, there was no established breach of the Code.
The Tribunal dismissed both complaints at the screening stage as they did not set out allegations that would violate the Code. However, these decisions demonstrate that individuals would be protected under the Code if they fall within a protected class and there is an actual adverse impact in their employment as a result of such protected grounds, such as a medical condition or political belief. If an employee is protected by the Code, employers are required to accommodate the employee. What constitutes appropriate accommodation depends on the nature of the employment and the bona fide requirements of the job. If the employer requires the employee to attend the office to work, regular COVID-19 rapid antigen testing may be an appropriate accommodation. If the nature of the employment allows the employee to work from home, this would also be an appropriate form of accommodation. However, the employer is not required to accommodate an employee if it would cause the employer undue hardship. Further, if an employee refuses to disclose vaccination status without a valid medical, religious, or reason of conscience, the employer is entitled to treat this in any way they would a breach of any other workplace policy.
In conclusion, pending any legal changes to provincial or federal requirements, businesses and organizations not already covered by the mandatory vaccine policy directive have the discretion to carefully assess different factors such as risk level, client and staff demographics, and geographical transmission rates when implementing mandatory vaccination policies. Some employers may choose to implement rapid antigen testing as an alternative to a mandatory vaccination policy and a similar assessment should be undertaken in exercising their discretion to do so. Employers must abide by relevant human rights legislation and take all potential exemptions seriously.
Joshua Valler and Shannon Dawson