Further to our July 21, 2021 newsletter, there remains no clear answer on whether Ontario employers can require employees to receive the COVID-19 vaccine before attending the workplace. However, British Columbia’s Human Rights Commissioner (the “B.C. Commissioner”) has offered guidance to B.C. employers. Hopefully, Ontario’s Human Rights Commission or Ministry of Labour will follow suit.
The B.C. Commissioner published a policy guidance (the “Guidance”) which states that employers, as well as landlords and service providers, can implement vaccination status policies, such as proof of vaccination requirements, in limited circumstances. Specifically, they can only be implemented where other less intrusive means of preventing COVID-19 transmission are inadequate for the setting and if due consideration is given to the human rights of everyone involved.
The B.C. Commissioner further stated that vaccination status policies should be justified by scientific evidence relevant to the specific context, time-limited, regularly reviewed, proportional to the risks they seek to address, necessary due to a lack of less-intrusive alternatives and respectful of privacy to the extent required by law. The B.C. Commissioner also reminded employers that if an individual is unvaccinated due to an access issue, the employer should do all they can to help that person get vaccinated.
Consistent with our previous newsletter, the B.C. Commissioner noted that employers must accommodate those who cannot receive a vaccine to the point of undue hardship and ensure that they do not face discrimination. This may include employees who are unable to receive a vaccine due to their place of origin, religion, physical/mental disability or family status, among other things.
The Guidance published by the B.C. Commissioner is likely a welcome relief for B.C. employers grappling with questions surrounding vaccination policies, but it has not answered all relevant questions. Firstly, the Guidance specifically notes that the ultimate decision on any human rights complaint regarding a vaccination policy lies with the B.C. Human Rights Tribunal. What is meant by when “less intrusive means of preventing COVID-19 transmission are inadequate” will likely be a contextual analysis by the Human Rights Tribunal in the particular circumstance. Second, the Government of Ontario has still offered no guidance on vaccination policies. While the B.C. Commissioner’s stance may offer some insight into what the Ontario Human Rights Tribunal or Ontario courts would consider should the issue of vaccinations in the workplace come before them, there is still no official guidance on this issue in Ontario. We continue to recommend that employers seek legal advice and contact the appropriate government body (such as the Ministry of Labour and/or the relevant Public Health Authority) to seek direction prior to creating a mandatory workplace vaccination policy. The lawyers at Heeney Vokey LLP would be more than happy to help with this.