The Ontario Human Rights Commission (OHRC) released a policy statement on September 22 regarding vaccine certificates and government policies. With the Ontario government’s introduction of the proof of vaccination requirement coming into effect as of September 22, the statement was likely made in anticipation of an onslaught of human rights complaints.

Ontario Human Rights Commission: Vaccine Requirements to Protect People at Work is “Generally Permissible”

The OHRC made the following statement on September 22, 2021:

“While receiving a COVID-19 vaccine remains voluntary, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code (Code) as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. This applies to all organizations.

Upholding individual human rights while trying to collectively protect the general public has been a challenge throughout the pandemic. Organizations must attempt to balance the rights of people who have not been vaccinated due to a Code-protected ground, such as disability, while ensuring individual and collective rights to health and safety.”

As demonstrated, the OHRC seems to be indicating that as a rule, vaccine requirements in the workplace will be upheld on human rights grounds. However, employers must still make efforts to accommodate those who cannot or will not be vaccinated due to a protected ground, such as religion or disability.

Singular Beliefs and Personal Preferences are Not Protected

Individuals who choose not to be vaccinated due to personal choice are entitled to make that decision, however, they do not have the right to accommodation under the Ontario Human Rights Code. Regardless of their personal preferences, if they choose to remain unvaccinated, they will not be entitled to accommodation.

Where Must Ontarians Show Proof of Vaccination?

The government of Ontario has mainly mandated that proof of vaccination must be shown in indoor settings. Those settings include:

• Restaurants, bars, and other food and drink establishments without dance facilities;
• Facilities used for sports and recreational fitness activities, including waterparks and personal fitness training;
• Casinos, bingo halls and gaming establishments;
• Concert venues, theatres, and cinemas;
• Bathhouses, sex clubs and strip clubs;
• Racing venues;
• Where commercial film and TV productions take place with studio audiences;
• Meeting and event spaces, including conference and convention centers;
• Food or drink establishments with dance facilities, including nightclubs and restoclubs; and
• Although malls were not on the government’s list (so far), in many malls there is a requirement to show proof of vaccination in order to dine in the food court.

However, the Ontario government also recognizes that not all people can be vaccinated at this time. The government also recognizes that some settings don’t necessarily require, or shouldn’t require, proof of vaccination. Settings that don’t require proof of vaccination include:

• Areas that are indoor and have certain specific settings used solely to:
  • use a washroom;
  • access an outdoor area that can only be accessed through an indoor route;
  • make a retail purchase;
  • place, pick up or pay for an order;
  • make a bet or pick up winnings at a racing track; and
  • purchase an admission.

• Individuals who (currently) don’t require proof of vaccination include people who:
  • are under age 12;
  • are under age 18 and entering the indoor premises of a sports or recreational facility solely for the purpose of actively participating in an organized sport; and
  • have a valid document from a physician or nurse practitioner saying you have a medical exemption from full vaccination.

Hundreds of Ontario Businesses Openly Defy Passport Requirement

Since the passport system has been implemented, hundreds of businesses in the province have openly refused to enforce the policy. Forming an online group called Ontario BAD (Businesses Against Discrimination), the group claims their members will not follow the recently-imposed restrictions. The penalty for defying the mandate can range from a fine of $1,000 to $10 million, however, the Ministry of Labour has said that it is refraining from issuing penalties for the time being, and instead focusing on “educating businesses”.

Given that employers are required to provide a safe workplace for employees, this could also open businesses up to legitimate work refusal claims by staff. While the Ministry has been reluctant to approve work refusals related to Covid fears, this may change in cases where a business is acting in open defiance of public health guidelines.

Contact Grosman Gale Fletcher Hopkins LLP in Ontario Regarding Mandatory Proof of Vaccination Requirements

It is important for employers, employees, and others to be aware and update themselves about their obligations and rights with respect to vaccine mandates.

For advice about proof of vaccination, vaccine certificates, mandatory mask policies, COVID-19 workplace policies, employer liability, employee rights and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.