Employees refusing vaccine for ‘personal reasons’ don’t have right to accommodations, OHRC warns

‘Personal preferences do not amount to a creed for the purposes of the Code’

Employees refusing vaccine for ‘personal reasons’ don’t have right to accommodations, OHRC warns

Anti-vaxxers, or people who refuse to be vaccinated based on their personal preferences, lose their right to accommodation under the human rights code, according to the Ontario Human Rights Commission (OHRC). The commission stated that while the human rights code does not allow discrimination based on creed - or a system of religious belief - personal preferences or singular beliefs do not amount to a creed.

"At the same time, the OHRC's position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code," the OHRC stated on recent legal guidelines.

According to the commission, the duty to accommodate may be limited if it could compromise health and safety during a pandemic.

"Even 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," they added.

This comes after Ontario's vaccine passport scheme took effect last week, with patrons now required to present proof of vaccination before gaining entry to select establishments.

Read more: Vaccine passports: What are the legal ramifications for Ontario employers?

The OHRC's position is that mandating and requiring proof of vaccination to protect people at work or when receiving services is "generally permissible" under the human rights codes as long as those with valid exemptions are reasonable accommodated. These include medical reasons, where patrons are required to present a written document from a physician that states that they are exempted from taking the jabs.

Organisations that are not covered in the province's vaccine passport scheme but want to implement it are urged to recognise the proof of vaccine certificate as well as medical certificates for those exempted from the rule. They can also implement a COVID testing measure as an alternative to the mandatory jabs or for those unable to get the vaccines for medical reasons.

"Organisations should cover the costs of COVID testing as part of the duty to accommodate," the commission noted.

The vaccine passports and COVID testing schemes, however, are only justifiable during a pandemic, according to the OHRC, and should be reviewed based on the current situation.

"Proof of vaccine and vaccine mandate policies, or any COVID testing alternatives, that result in people being denied equal access to employment or services on Code grounds, should only be used for the shortest possible length of time," it said, adding: "Policies should also include rights-based legal safeguards for the appropriate use and handling of personal health information."

Read more: Ontario MPP proposes law to protect unvaccinated workers from termination

The OHRC is also urging the government and businesses to implement measures safeguarding the rights of various groups, as enforcement of such schemes could be used to target or criminalise them

"The OHRC urges governments and organisations to take proactive steps to make sure any enforcement of vaccine mandates or proof of vaccination policies does not disproportionately target or criminalize Indigenous peoples, Black and other racialized communities, people who are experiencing homelessness, or with mental health disabilities and/or addictions," it said.

Access to vaccines is already widespread across Ontario, but the OHRC acknowledged some existing barriers to some members of the public, which is why ensuring access to the jabs is also important for a vaccine mandate.

Residents may get their vaccine passports on the province's official government portal. They can save the document or print it out until the province issues a digital vaccine certificate on October 22.

Companies that will not comply could be fined by up to $1,000, according to the government's guidelines, while individuals can be fined $750.

 

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