Vaccines, masking, and human rights: where do we go from here

April 28th, 2022 by Safia Lakhani

Legally speaking, mandatory vaccination policies may be permissible in the context of employment, business, and housing. However, such policies should account for possible exemptions under the applicable human rights legislation.

Where do we draw the line between human rights, and masking and vaccine mandates?

Most provincial governments, including Ontario’s, have removed mask mandates and proof of vaccine requirements. Any remaining regulations are set to disappear this spring. Decisions on masking and vaccines have now been left to individual employers and business owners.

Legally speaking, mandatory vaccination policies may be permissible in the context of employment, business, and housing. However, such policies should account for possible exemptions under the applicable human rights legislation.

What comes into play when considering the intersection of vaccination policies and human rights?

The Duty to Accommodate

The Ontario Human Rights Code imposes on landlords, employers, unions and service providers a duty to accommodate. This obligation is informed by respect for dignity, individualization, and the principles of integration and full participation. When balancing rights and responsibilities, the line is drawn at undue hardship.

The accommodation process is described as a ‘two-way street’ or ‘joint process‘, with both parties acting in good faith. While the accommodation provider is entitled to seek documentation, they are not entitled to obtain a diagnosis, or any other information that may violate an individual’s privacy, from their healthcare provider. By the same token, an accommodation requester is not entitled to demand a specific accommodation. As long as the accommodation is appropriate, meeting the requester’s specific needs, the provider’s duty is fulfilled – from a legal standpoint.

Possible grounds for exemptions

Each province has human rights legislation prohibiting discrimination and harassment on the basis of certain grounds. Ontario’s Code prohibits discrimination and harassment in employment, housing, and the provision of services on the basis of numerous grounds. For vaccine and masks mandates the relevant grounds are creed and disability.

The definition of disability in the Code includes mental health conditions, chronic illness, and developmental disabilities. The term is interpreted broadly because even people with non‑evident disabilities face discrimination in the context of housing, employment, and the receipt of services.

What do healthcare professionals have to say?

Despite this expansive interpretation, the Ministry of Health confirmed that exemptions to the vaccine on the basis of disability should only be certified in limited cases. Their guiding principle: the risks of becoming vaccinated outweighs any potential therapeutic benefit. The only conditions deemed within this class are pre‑existing myocarditis or severe allergic reaction, like anaphylaxis, to any component of the vaccine. For those who experienced an adverse event following immunization, known as AEFI, are assessed to determine if an mRNA vaccine may be administered in place of the original vaccine for the second dose.

The College of Physicians and Surgeons of Ontario confirms there are “very few acceptable medical exemptions to the COVID-19 vaccine.” It recommends any medical exemption notes clearly specify reason the patient cannot be vaccinated and the effective period for the medical reason.

Considering creed as a basis for exemption

Creed-based exemptions to the vaccine are less clear. There are parameters for what the OHRC considers creed including that the belief in question is sincerely, freely and deeply held, that it includes an overarching system of conduct and practices, and ‘nexus’, or connection, to an organization or community professing a shared system of belief. While individual political beliefs are excluded from the definition of creed, a comprehensive system of beliefs- such as ethical veganism– may be captured by this term (though we don’t know of any reported decisions in the Canadian context where this has been accepted).

Intersection of creed and vaccine mandates

The OHRC publication confirmed personal preferences or singular beliefs do not amount to creed for the purpose of exemptions. A recent decision by the British Columbia Human Rights Tribunal considered an application made by a worker who opposed his employer’s mandatory mask policy. He claimed: “We are all made in the image of God, a big part of our image that we all identify with is our face. cover up our face arbitrarily dishonours God.”

The Tribunal concluded the employee did not successfully establish his objection was grounded in a sincerely held religious belief suggesting. And, in the absence of an established doctrine or other direction from a religious organization or ethics-based movement, it is highly unlikely that a creed‑based exemption to vaccine mandates will be granted.

While there are, as yet, no reported decisions on creed-based exemptions to the vaccine, this will likely change. Earlier this year, four students at McMaster filed an application for judicial review with respect to the university’s refusal to exempt them from their mandatory vaccination policy.

The students objected to the vaccine on the basis that testing occurred on the HEK‑293 cell line, which tissue from elective abortions that occurred 30 to 60 years ago. This decision may give some insight into how the court interprets creed‑based exemptions in the context of mandatory vaccination policies.

How does the exemption process work?

Demonstrating that your disability or creed prevents vaccination or masking, does not necessarily guarantee an exemption. The next stage is an analysis of whether granting the exemption meets the threshold of undue hardship. The factors considered are health, safety, and cost.

An employer whose workers must perform their role on‑site, in close proximity, may argue that minimizing any risk of COVID amongst staff is pivotal. But the employer must show that alternative accommodations to mandatory vaccines, such as proof of negative tests, could not satisfy this purpose.

We will, almost certainly, get more clarity on how this issue is addressed by tribunals and courts in the coming months as we continue to grapple with the impact of the virus.

 

Filed in: Civil Rights, Human Rights, Litigation

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