Vaccine Passports – Why should you care?

The past few weeks have seen a rapid transition where both governments and employers have shifted to implementing some form of vaccine mandate. The Ontario Human Rights Commission has also just released important guidance on this subject.

Starting September 22^nd, Ontarians will need to be fully vaccinated (two doses plus 14 days) and provide proof of vaccination along with photo ID to access certain public settings and facilities. Ontario plans to develop and implement an enhanced digital vaccine certificate with unique QR (Quick Response) code that will verify vaccination status when scanned, by October 22^nd.

A full list of the affected businesses and organizations can be found here but in broad terms, vaccine certificates will not be required for essential businesses, as defined by the government.

In terms of enforcement, under the provincial scheme, businesses and organizations are responsible for meeting the required proof of identification and vaccination as outlined in the regulation. Failure to comply can result in fines for both individuals and organizations.

But what about in the workplace?

Absent from the government’s new mandate is a requirement that employees in the establishments where vaccines are mandatory be vaccinated. Also absent is a statement from the government confirming that it is legal for employers to do so.

However, the Ontario Human Rights Commission has just released important guidance on the human rights implications of vaccine mandates which is helpful to employers who are considering or have already implemented a mandatory vaccine policy.

According to the Commission, while receiving a COVID-19 vaccine remains voluntary, mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code as long as protections are put in place to make sure people who cannot get vaccinated for Code-related reasons are reasonably accommodated.

The two most likely exemptions under the Code are disability and creed.

Exemption for disability/medical reasons

The provincial proof of vaccine regime states that people who are unable to receive a vaccine must provide a written document supplied by a physician, registered nurse (extended class) or nurse practitioner stating the individual is exempt for a medical reason and for how long the exemption is to last. Until recognized medical exemptions are integrated into the digital vaccine certificate, these written documents may be required.

Amid reports of organizations offering to provide medical exemption notifications for a fee, the College of Physicians and Surgeons has issued COVID-19 FAQS FOR PHYSICIANS which states:

Generally speaking, there are very few acceptable medical exemptions to the COVID-19 vaccination (e.g., an allergist/immunologist-confirmed severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine or to any of its components that cannot be mitigated; a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine).

Given the rarity of these exceptions, and in light of the fact that vaccines have been proven to be both safe and effective, any notes written for patients who qualify for a medical exemption need to clearly specify:

• the reason they cannot be vaccinated against COVID-19 (i.e., document clear medical information that supports the exemption); and
• the effective time period for the medical reason (i.e., permanent or time-limited).

While physicians are generally required to complete third party medical reports for patients when requested, the circumstances of the pandemic support physicians declining to write notes or complete forms when the patient making the request does not have a medical condition that warrants an exemption. If you find yourself in this situation, clearly and sensitively explain to your patient that you cannot provide them with a note or form, along with the reasons why. 

For individuals who do have recognized medical exemptions, businesses and organizations who fall outside of the list above and have a proven need for COVID-19 related health and safety requirements, might also put Covid testing in places as an alternative to mandatory vaccination. The business or organization should cover the costs of testing as a part of the duty to accommodate.

Exemption for creed/religion

The Commission defines creed as a belief system that may have the following characteristics:

• sincerely, freely and deeply held
• it is integrally linked to a person’s self-definition and spiritual fulfilment
• it is a particular, comprehensive and overarching system of belief that governs one’s conduct and practices
• it addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence; and
• it has some “nexus” or connection to an organization or community that professes a shared system of belief.

Consistent with previous decisions reached by the Human Rights Tribunal of Ontario with respect to mask mandates, in their new policy statement the Commission says:

While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.

Getting vaccinated is of course voluntary. However, the OHRC’s position is that a person who chooses not to be vaccinated based on a personal preference does not have the right to accommodation under the Code.

Duty to accommodate creed and medical exemptions

Under the Code, organizations have a duty to accommodate someone based on a Code-protected ground unless it would constitute undue hardship.

The Commission’s position is that:

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. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.

Thus, employers may be able to argue that health and safety needs and obligations transcend the exemptions sought by employees. Although each case will have to be determined based on its individual merits, this statement provides important support for vaccine mandates.

Addressing social discord around vaccine mandates

While the Commission’s guidelines and various other government statements are helpful, emotions are running high with strong views about vaccine mandates. Employers are well advised to issue additional statements or policies reminding employees to remain respectful in their engagement with each other.

COVID-19 Update: IDEL has been extended to the end of 2021

On another note, a week before it was set to expire, Ontario’s Infectious Disease Emergency Leave (IDEL) has been further extended until January 1, 2022 This means that the temporary leave and related temporary rules which were introduced in response to the pandemic, will continue to be in effect until then.

This is now the fourth time the Ontario government has extended IDEL since it was introduced in May 2020. For information on how IDEL works and commentary, please visit out our knowledge hub.