First of all, while determining whether or not it makes sense to implement a mandatory vaccination policy, it is important to consider the nature of the workplace and whether a ‘mandatory’ policy is necessary. For example, if employees are working remotely, requiring that they be vaccinated is unlikely to be considered reasonable. However, if employees are expected to work on-site (at the office/place of business), have to interact with the public on a regular basis, and work in close proximity with other workers, mandating vaccines is likely to be a reasonable requirement. Here is a summary of the OHRC’s policy guidance to employers regarding mandatory vaccination policies:1) “Vaccination requirements generally permissible” – The OHRC has taken the position that mandating and requiring proof of vaccination to protect people at work is generally permissible under the Human Rights Code so long as employers ensure that there are protections in place for any employee who requires accommodation and is unable to be vaccinated for Code-related reasons (such as a medical exemption or disability). This applies to all organizations.2) “Duty to Accommodate” – Organizations must try to balance the rights of people who have not been vaccinated (due to a Code-protected reason) while protecting the health and safety of the rest of the employees and/or general public.
Therefore, people who are unable to receive the vaccine must provide a written document, supplied by a physician stating they are exempt for a medical reason. In this case, an employer will be required to provide a reasonable accommodation, unless the accommodation would “significantly interfere with people’s health and safety”.The Treasury Board Policy on People Management and Directive on Duty to Accommodate outline these legal obligations, requiring that:▪candidates for employment and persons employed are treated with dignity and respect in an inclusive, barrier‑free environment▪when barriers cannot be removed, individuals be accommodated up to the point of undue hardship, taking into consideration issues of health, safety and cost▪accommodation is made based on the circumstances of each case while respecting the individual’s right to privacy and confidentiality3) “Time-Limited Requirements & Privacy Protection” – The proof of vaccine requirement does not propose a limit to access of any services for people who are unable to be vaccinated for medical reasons. The OHRC is also clear that proof of vaccination, vaccine mandate policies, and/or any COVID testing alternatives that result in unequal access to employment or services (under the Human Rights Code), should only be used for the shortest possible length of time and may only be justifiable during a pandemic. These policies should be reviewed and updated regularly to ensure they are aligned with the current pandemic conditions, and public health recommendations. |
