On September 22, 2021, the Government of Ontario’s Proof of Vaccination mandate took effect in the province. This mandate was made in accordance with Regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, and requires patrons to provide proof of full vaccination and personal identification before entering certain businesses. The regime applies to a number of employers in Ontario who must therefore understand its contents in order to operate safely and legally.
On the same day, the Ontario Human Rights Commission (the “OHRC”) released a statement providing that it is generally permissible under the Human Rights Code (the “Code”)for an employer to implement a proof of vaccination policy to protect employees in the workplace. However, employers who wish to adopt such policies must ensure that workers who cannot receive the vaccine for Code-related reasons (such as a medical exemption) are reasonably accommodated.
An Employer’s Health and Safety Obligations to their Employees
Under the Occupational Health and Safety Act (“the Act”), employers have a duty to take every reasonable precaution as a means of protecting their workers. With the spread of COVID-19 and its more potent variants, employers have a responsibility to ensure that they do what they can to limit the spread of infection and keep workers safe. Vaccine mandates and policies are important tools in achieving this objective, and employers should implement them accordingly.
The Government of Ontario’s proof of vaccination mandate applies solely to patrons in certain business settings. For example, the mandate provides that employers will not allow patrons to enter their premises if the names and dates of birth on their proof of vaccination and personal identification documents do not match. If employers do not follow through in implementing this mandate appropriately, they are running a higher risk that one of their employees will contract COVID-19.
While effective implementation of the vaccine passport mandate certainly helps, employers can do more to create a safe and healthy workplace for their employees. For example, employers who are unaffected by the vaccine passport mandate, may still implement their own vaccination requirements applicable to patrons. Additionally, they can implement vaccination policies that are applicable to their employees as well (not just their customers). Businesses can rest assured that such policies are generally permissible under Ontario’s human rights laws, as declared by the OHRC.
Employers should understand that in implementing such policies, they must try to balance the rights of employees who have been unable to receive the vaccine due to Code-protected grounds, with the individual and collective rights of others to be safe and healthy in the workplace. Stated differently, employers have a duty to accommodate employees who cannot be vaccinated for medical and disability-related reasons unless doing so would significantly interfere with the health and safety of other workers.
For these reasons, employers would be wise to draft a comprehensive vaccination policy, applicable to everyone and, taking into consideration the limited exemptions under the Code. This will provide workers with additional peace of mind when coming into work, as well as increased security against COVID-19. From the employer’s perspective, such policies will also provide assurance that the business is operating safely and in accordance with the law.
As a vaccine mandate and/or policy will necessarily require the exchange of personal information, employers should understand that there are important privacy elements at play. An employer implementing such a policy must ensure that they are appropriately using and handling their employee’s personal health information in accordance with privacy laws. Similarly, the Ontario mandate provides that employers cannot retain any information concerning a patron’s proof of vaccination.
Employers who fail to comply with the OHSA’s provisions or regulations may be liable for fines as high as $1,500,000. For these reasons, employers would be wise to ensure that they create a workplace that is conducive to employee health and safety in light of the COVID-19 pandemic.
The Bottom Line
While proof of vaccination mandates and/or vaccination policies are important tools in the fight against COVID-19, they also carry liabilities for employers if implemented incorrectly. Employers are strongly encouraged to seek the advice of experienced employment law counsel when drafting and implementing such policies.
If you have any questions or concerns about compliance, or if you would like to draft vaccination policies for your business, please contact Hyde HR Law and we will be happy to assist. Our legal expertise and guidance will ensure that your policy is on the right side of the law.