Many employees are now being asked to return to their workplace. As a prerequisite to being able to do so, some employers are advising that employees must be either vaccinated or consent to a mandatory testing protocol. For some employers, this is a business decision. For others, this is a requirement implemented by the Federal Government.
Who is Affected?
Some employers are required by the government to have some sort of mandatory vaccination policy including government employees, banks, hospitals, ambulance services, etc.
Other employers may be implementing mandatory vaccination or mandatory testing policies as a means of satisfying their obligations under occupational health and safety laws.
If you have concerns, you must first ask: is the policy reasonable?
For a COVID-19 vaccination policy or mandatory testing protocol to be reasonable, it must properly balance the following things:
- Workplace safety: ensuring the health and safety of everyone in the workplace;
- Employee privacy: addressing the issue of consent, use and disclosure of your personal information;
- Human rights: ensuring that those who cannot get the vaccine due to a supported exemption are accommodated, rather than discriminated against, if possible; and
- Common law and contractual rights: ensuring the policy does not alter a fundamental term of your employment.
Ultimately, to determine reasonableness, an employer must be able to establish that there is a realistic risk of a COVID-19 infection in the workplace, the implementation of the policy effectively controls this risk, and that the policy outweighs the intrusion it may cause.
Do you have to disclose your vaccination status?
The short answer: maybe.
Some employers will be mandated by the government to collect vaccination status.
Other employers may be following an internal policy to gather vaccination status to determine COVID-19 risk in the workplace. If you do not disclose your vaccination status the policy will likely provide an alternative means of controlling COVID-19 risk in the workplace for you. If the policy is a reasonable means of controlling COVID-19 risk in the workplace then you may be required to give your vaccination status or be subject to an alternate health measure.
That policy should also contain privacy details and outline how the information will be used and where, if at all, it will be stored. If it does not include that information, ask your employer.
Current Legally Supported Exemptions to a Mandatory Vaccination Policy
Presently, there are two primary human rights related grounds upon which you can receive an exemption to a mandatory vaccination policy: religious grounds and disability.
There are currently only two medical exemptions available to Ontarians:
- An allergic reaction to a component of the vaccine, which must be confirmed by an allergist or immunologist; or
- If you suffered myocarditis or pericarditis after the first dose of a vaccine
If either of these two exemptions apply to you, your employer must accommodate you to the point of undue hardship.
For greater detail into whether you are exempt, please review the Ministry of Health bulletin found here: Medical Exemptions – Ministry of Health.
If you are unable to obtain the vaccine against COVID-19 on account of your religious beliefs, you must be part of an organized religion, with strict vaccine beliefs. The prohibition of a vaccine must be a serious, substantial tenet of that religion.
On September 22, 2021, the Ontario government’s Proof of Vaccination, or “Vaccine Passport” program came into effect. On that same day, the Ontario Human Rights Commission (“OHRC”) put out the “OHRC policy statement on COVID-19 vaccine mandates and proof of vaccine certificates” which provided the OHRC’s official stance on the legality of COVID-19 vaccine requirements, both in public spaces and workplaces. This policy statement expresses that the OHRC generally views vaccination requirements as permissible and in compliance with the Human Rights Code, but there is a duty to accommodate if an individual cannot be vaccinated for medical or disability-related reasons. However, the policy statement also makes clear that the OHRC does not view “personal preference” as a protected ground warranting accommodation under the Code.
Employees will generally be required to provide proof of their exemption to their employer.
What if you don’t qualify for an exemption?
In response to your refusal or hesitancy to abide by the proposed policy by your employer, one of the following events may happen:
- You are put on indefinite leave;
- Your duties, pay, or other material elements of your employment are altered substantially;
- You may be asked to participate in an education session about vaccinations;
- You are threatened with discipline or termination; or
- You are actually disciplined and/or terminated.
It will be important that you do not disregard your work while employed, display insubordination, act dishonestly, or fail to show up in the workplace.
So, what should you do?
If you are presented with any of the following scenarios or have further questions, we highly recommend that you remain measured and speak with you one of the lawyers at Monkhouse Law to help you navigate the situation.
Employment Lawyers at Monkhouse Law specialize in Employment Law, Human Rights Law, and Disability Insurance Law. We serve employees, independent contractors, and employers, and strive to get optimal results for every client through skilled advocacy and research on each matter. We have successfully represented clients before all levels of court in Ontario, including the Superior Court, the Divisional Appeals Court, and the Court of Appeal and have also appeared before the Supreme Court of Canada.