No jab, no job: What accommodations are employers legally bound to offer?

As the trucker protest continues to grow, HR leaders face questions around exceptions to the rules

No jab, no job: What accommodations are employers legally bound to offer?

As the ‘Freedom Convoy’ continues to protest mandatory vaccines in Ottawa, more and more questions are rising around the legalities of accommodations in the workplace. If an employee refuses to have the jab, what sorts of accommodations are employers legally bound to make before jumping straight to termination?

HRD spoke with Ryley Mennie, principal at Miller Titerle Law Corporation and speaker at our upcoming Employment Law Masterclass, who revealed the steps employers should take when it comes to enforcing accommodations.

Medical vs human rights

“There’s really two sides to this question,” added Mennie. “The first concerns the public sector - especially in the healthcare industry. Those working with vulnerable people are mandated under the public health order to have the jab – with accommodations only being made over medical exceptions. There is technically an accommodation under human rights laws in theory – however that’s rare.”

In actuality, the public health order states that those working in this sector are not entitled to access the human rights, or religious based, accommodations. This is because of the difficulties in being able to investigate and assess a person's legitimate religious belief and its scope in terms of not being vaccinated.

“In that case, the approach most employers are taking is that while there’s a mandatory vaccination order in place, there is a timeframe for those unconvinced to change their mind or to bring forth evidence and information to trigger an accommodation process,” explained Mennie. “However, after that time lapses employees are usually placed on unpaid leave. Following that, there’s a good chance that the worker will lose their employment.”

The bases for this firing can either be a just cause termination or alternatively it could be characterized as a resignation.

“Effectively, it's the employer’s position in almost all cases that this is a mandatory measure to ensure workplace safety and the safety of our communities. Therefore, not complying with that, unless you have a valid medical reason, you're not entitled to an exemption from that requirement.”

OHRC changes in 2022

Late last year, the Ontario Human Rights Commission (OHRC) revealed that people who refuse to be vaccinated based on their personal preferences, lose their right to accommodation under the human rights code. In updated guidelines the OHRC stated that while the human rights code won’t allow for any discrimination based on creed, personal preferences do not summon to a creed – there for the refusal has no grounds.

“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.

To hear more from Mennie and other employment law experts, register for our upcoming Employment Law Masterclass here.

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