Mandatory vaccination policies are a widely discussed topic among employers and employees alike as we look to further reopen the economy in the middle of a fourth wave. Employers have a duty to protect their employees and customers in the workplace. However, as we have previously discussed, improperly drafted and communicated mandatory vaccination policies may encroach on employees’ privacy rights and their rights not to be discriminated against. Employers must ensure any mandatory vaccination policy is clearly worded and justifiable based on the type of workplace in question. Otherwise, employers may run into costly legal troubles.

If you have reviewed your circumstances and found that a mandatory vaccination policy is justifiable in your workplace, the next question to consider is how to deal with employees who cannot get vaccinated for reasons protected under human rights laws (e.g., the Ontario Human Rights Code). An employee may claim to be prevented from getting vaccinated because of religious belief or a medical condition, both protected human rights grounds. However, the employer has the right to ask for satisfactory proof of that religious belief or medical condition before providing accommodation for this employee.

Medical Exemptions under Mandatory COVID-19 Vaccination Policies

There are two types of medical conditions that could prevent an employee from getting vaccinated:

1. A long-term or permanent medical condition, which would likely prevent vaccination permanently.
2. A temporary/time-limited medical condition, where an employee may be able to get vaccinated once they are no longer afflicted with the condition.

Permanent medical conditions that prevent people from being vaccinated are rare. According to the Ontario government, there are only two situations: the first would be an allergic reaction to a component of the vaccine; the second would be if an individual suffered myocarditis or pericarditis after the first dose of a vaccine.

Time-limited conditions are also uncommon. In rare cases, employers may need to accommodate the time an employee needs for a medical procedure or other treatment.

Religious exemptions

Similarly, religious exemptions are also rare. If, based on the creed/religion they practice, an individual believes that they are not permitted to be vaccinated against COVID-19, they may be exempted. This cannot be a matter of personal preference or opinion, but religious prohibition. In other words, practitioners of a faith that endorses taking the vaccine may find their requests denied. Numerous tribunals have ruled that people who refused to follow mandatory mask policy did not have a human rights claim if they refused to do so out of personal preference. For example, believing that wearing a mask is “pointless”, because they disagree that wearing masks helps to protect the public during the pandemic, or believing that wearing a mask does not stop the transmission of COVID-19. Similar reasons will likely apply to objections to mandatory vaccination policies.

As such, a more detailed and restricted reason than “I believe the vaccine is bad” is needed to establish a religious exemption.

Asking for proof for religious exemptions might entail obtaining an opinion from a recognized leader of a church or mosque or other creed or faith.

How to deal with exemptions in a mandatory COVID-19 Vaccination policy

Employers will need to address exemptions on a case-by-case basis. It is important to clearly lay out the exemption process and requirements in a mandatory vaccination policy. For example, for medical exemptions, employers could either exempt an employee with a time-limited condition for a reasonable period of time so that once they are able to be vaccinated they can. For those who have permanent conditions, employers may need to provide accommodations as long as COVID is a threat.

Employers should require evidence for exemptions

Employers are entitled to ask for proof of the need for an exemption. Since this type of information is personal (health) information, employers should be careful when handling such information, and only collect and keep the minimum that is necessary to serve the justified purpose. Employers should also note whether the expert providing evidence is qualified for doing so. If the employee refuses to provide such proof or provides fake documents, this may lead to disciplinary actions or even termination for cause.

That said, employers are urged to exercise caution before disciplining or terminating an employee whenever privacy and human rights considerations are involved, and particularly if the employer alleges cause. If not managed properly, such employer actions could lead to litigation and unnecessary costs.

An improperly managed mandatory vaccination policy may damage the effective management of a workplace and potentially lead to loss of employee morale, possible loss of employer reputation, and significant costs. Employers are advised to consult with experts before developing and implementing mandatory vaccination policies.

If you need guidance from an experienced employment lawyer, call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca.

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