In past articles, we have emphasized that mandatory vaccination policies in the workplace are generally permissible, subject to legitimate objections that may be raised on the basis of grounds protected under human rights legislation. While medical (disability) grounds for objection to vaccination are an obvious candidate, there has been some speculation as to whether "religious" objections might legitimately warrant an exception, thereby triggering the employer's "duty to accommodate."
There have thus far been no decisions from the Ontario Human Rights Tribunal on these thorny accommodation issues. On September 22, 2021, however (contemporaneous with the introduction of Ontario's new Vaccine Passport requirement) the Ontario Human Rights Commission published a statement on the topic of mandatory vaccination, confirming the Commission'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... While the Code prohibits discrimination based on "creed", personal preferences or singular beliefs do not amount to a creed for the purposes of the Code."
The protected ground of "creed" under the Code encompasses "religious creed" and "religion." The Commission's statement goes on to say that:
"if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic."
While this statement seems to leave the door open for objections based on "religious" beliefs (rather than purely "personal" or "singular" ones), employers (and employment law counsel) may have to wait for the Tribunal to render a decision on this specific issue before gaining more clarity and certainty. The statement also suggests that the test of (the threshold for) "undue hardship" may be somewhat relaxed during the pandemic.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.