NEW: OHRC Policy Statement on COVID-19 Vaccine Mandates and Proof of Vaccination Certificates
- Policy Statement: The Ontario Human Rights Commission (“OHRC”) recently released a policy statement on the requirement to be vaccinated in certain settings. Below are the key takeaways which Employers should be aware of.
According to the OHRC, are vaccine mandates permissible in the workplace?
- Generally, yes: provided employers accommodate workers who seek exemptions for reasons that are protected under the Ontario Human Rights Code (“Code”). Therefore, subject to any future legal challenge to this policy and the employers obligations to comply with privacy laws, requiring proof of vaccination from workers will generally be permissible.
Proof of Vaccines – Will apps and digital proof be deemed acceptable?
- This is not yet officially available through the Federal or Provincial Government, however we are seeing third party apps being adopted and used across the country with some concern. For the most up to date commentary on this issue, we have asked our tech and cyber security expert, Ritesh Kotak, to share his thoughts in the enclosed blast and following his live commentary in the news this week. The Province has promised to roll out its platform / app by October 22, 2021, which will hopefully take care of the concerns that Ritesh has raised and should legitimise the use of digital vaccine passports as proof of vaccination status.
Under the Code, Medical exemptions are likely to be the most common, but what kind of proof will workers need to provide when claiming an exemption?
- Individuals seeking exemption require a written document from a registered nurse or physician, stating that the individual is exempt for medical reasons and setting out the duration for which the medical exemption applies i.e. whether it is temporary or permanent – however the diagnosis/condition need not be disclosed, nor is there any ability to demand that this information be provided, thereby limiting an employer’s ability to effectively challenge these written documents.
What has the OHRC said about COVID-19 testing?
- And is this a reasonable accommodation for workers who cannot be vaccinated? Most employers are following the modelling of mandatory vaccination policies that are required in other sectors, requiring workers who can’t comply with a vaccine policy to submit to periodic testing for COVID-19. Importantly, the OHRC has indicated that in its view, testing may be a reasonable accommodation for those workers who cannot be fully vaccinated.
Can we require our employees to cover the costs of the COVID-19 tests, in circumstances where they can’t be fully vaccinated?
- Ideally, this should be avoided as the OHRC policy statement suggests that the costs of these tests should be covered by the employer and will likely be argued as being part and parcel of the duty to accommodate. It should also be kept in mind that free rapid tests have been made available through various chambers of commerce and industry bodies too.
What about personal preferences and refusals that are not protected under the Code?
- The OHRC policy statement does not cover these instances, nor are these kinds of refusals protected under the Code. Accordingly, there is no corresponding duty to accommodate. Despite this, discussions around any possible alternatives may still be prudent, especially where periodic testing, additional PPE or the agreed variation of work practices and/or shifts are possible.
Analysis – OHRC Policy Statement
- No direct law-making power: The OHRC has no direct law-making powers and even if its policy statement is ultimately applied, there remains the possibility that it could be challenged through the courts, however, the policy statement certainly offers a level of insulation to employers and should serve to mitigate against some of the possible challenges in what remains an otherwise uncertain time.
- A link to the OHRC’s policy can be found here.
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