Mandatory Vaccinations: Valuable Guidance from College of Physicians & Surgeons and Human Rights Commission

In our last newsletter we provided information regarding vaccine policies in condominiums.  A frequent question that arises with respect to vaccine policies is what circumstances would justify granting an exemption to a vaccine requirement.  

Now the College of Physicians and Surgeons of Ontario (CPSO), which is the governing body for physicians in Ontario, and the Ontario Human Rights Commission (OHRC), have both provided some valuable guidance on that question.

Before summarizing the CPSO and OHRC statements, we caution that anyone who receives a request for accommodation under the Human Rights Code should seek legal advice before responding.   

CPSO: Medical Exemptions for Covid Vaccines Should be Granted Only in Rare Cases:

In a notice to physicians, the CPSO states that a patient asking for a medical exemption “must have a legitimate medical condition that would warrant an exemption”. The CPSO then sets out the rare conditions that would justify an exemption:   

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).

The CPSO’s notice is not necessarily binding on physicians and does not apply to other medical practitioners who are not governed by the CPSO. Nonetheless, the CPSO notice may be a useful tool for Condominium corporations responding to requests for medical exemptions to their vaccine policies.  

See Covid-19 FAQs for Physicians.  

OHRC: Personal Preference Does NOT Amount to Discrimination on Basis of Creed

The OHRC published a policy statement on vaccine mandates and proof of vaccination certificates. The OHRC states 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.”

The OHRC also added that, while receiving a Covid-19 vaccine is voluntary:

At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.

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.

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.

The OHRC policy would not apply in the case of a bona fide religious belief.

The OHRC did caution, however, that organizations should be mindful that barriers to vaccine access or proof of vaccination may disproportionately affect certain Code-protected groups. The OHRC states that barriers to vaccine access may include:

• Language barriers or lack of access to a compatible phone or Internet connection make it harder for some Code-protected groups to find information about vaccination or testing

• Older people or people living with disabilities may have difficulty booking or going to their vaccine or testing appointment, or may need extra supports to be vaccinated or undergo testing (such as a caregiver, communication supports, etc.)

• Low-wage workers with multiple jobs and caregiving responsibilities may lack the time or resources to prioritize visiting a vaccination site or taking a COVID test

• Undocumented people and people experiencing homelessness face a variety of barriers relating to the lack of government-issued ID, fear of revealing immigration status, and mental health and addiction disabilities

• Individuals and groups who have faced discrimination or traumatic experiences while receiving health-care services may not trust vaccines or testing.

It is possible, therefore, that persons who are unable to get vaccinated due to a systemic barrier may require accommodation.

You can read the entire OHRC policy statement here.