Ontario Human Rights Commission: No “Right to Accommodation” for Personal Preferences Against COVID-19 Vaccine

By: Jessica Donen

In response to the Ontario government announcement that, starting September 22, 2021, all Ontarians would need to provide proof of vaccination to access certain public settings and facilities, the Ontario Human Rights Commission (“OHRC”) released a statement on September 22, 2021 providing that, among other things:

  1. 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 the Ontario Human Rights Code, R.S.O. 1990, c. H. 19 (the “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;

  1. Individuals who choose not to be vaccinated based on personal preferences do not have the right to accommodation under the Code;

  1. A singular belief or personal preference against vaccinations does not amount to a creed under the Code, which is a protected ground under section 5(1) of the Code;

  1. Even if accommodation were required on the basis of creed, the duty to accommodate is only required up to the point of undue hardship. Significantly compromising the health and safety of other employees, particularly during a pandemic, may be considered undue hardship.

In short, per the OHRC:

[A] person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code.

This statement from the OHRC is quite timely for employers. In recent weeks, public and private employers throughout Ontario unveiled vaccination policies for their employees. Although the obligations under these policies vary, it is commonly understood that any vaccination policy must comply with human rights legislation and accommodate those employees who are unable to be vaccinated based on protected grounds.

For example, an employee with an allergy to an ingredient in the vaccine may be medically exempted from receiving one. In these situations, an employer cannot require the employee to obtain a vaccine and must accommodate the employee to the point of undue hardship. For the most part, this is uncontentious, though it remains to be seen to what degree some employers in certain environments (perhaps close quarters involving vulnerable populations) may be able to establish undue hardship in continuing to employ a person unable to be vaccinated.  Similarly, it is also unclear whether in some environments “being vaccinated” will be considered a bona fide occupational requirement.

Prior to the OHRC’s statement, the question of whether the Code requires employers to accommodate employees who refuse to obtain a vaccine on the basis of creed was less clear, leaving employers potentially exposed and concerned about their efforts to protect the safety of their workplaces in the face of unvaccinated employees with singular but firmly held beliefs regarding the vaccine.

Although “creed” is not expressly defined in the Code, the OHRC has interpreted it to mean: a sincerely held belief that is integrally linked to a person’s identity, self-definition and fulfilment based on a particular and comprehensive system of belief that governs one’s conduct and practices. This includes, but is not limited to, religion.[1]

Employers now have some direction from the OHRC on what they are required to do in situations where an employee seeks an exemption from a mandatory vaccine policy on account of personal beliefs.

It is, however, important to remember that a statement from a tribunal is not legal precedent. We have yet to see how human rights tribunals or courts decide these specific issues. Further, although OHRC clarified that personally-held beliefs against COVID-19 vaccinations do not amount to creed for the purposes of the Code, businesses might still be required accommodate employees who are unable to receive the vaccine for other protected grounds (e.g. if their religion prohibits vaccinations).

Given the above, businesses should still tread lightly. When implementing mandatory COVID-19 vaccination policies in the workplace must ensure that their policies acknowledge an employee’s right to seek accommodation, not only for medical exemptions but also for any other protected grounds under the Code.

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[1] Ontario Human Rights Commission, “Policy on Preventing Discrimination Based on Creed” (17 September, 2015), online: http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-creed

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