With so many employers and organizations requiring proof of vaccination these days, it has some saying this is illegal, discriminatory, and a violation of human rights.
Simply put: they’re wrong.
Barrie 360 legal correspondent and senior associate at Barriston Law, Joshua Valler, says employers are well within their right to require proof of vaccination from employees. “Quite frankly, for an employer, it is totally within their discretion whether or not they want to impose a vaccination policy,” Valler told Barrie 360.
“That being said, there are also various other duties that an employer has, such as the duty to accommodate valid medical exemptions. They have a duty to accommodate someone’s religious beliefs or moral beliefs,” said Valler. “But they only have that duty up to the point of undue hardship. So, there’s a real balancing act as well: does the accommodation go too far? Or does it require too much from the employer? Because keep in mind, the employer does also have a corresponding obligation to its other employees to provide a safe work environment.”
Many proof of vaccination policies across multiple sectors do allow medical or religious exemption. Valler says those seeking an exemption on these grounds will have to substantiate their claim. “A valid medical exemption has to include a reference from a physician outlining why they can’t get the vaccine. For religious reasons, there’s probably going to be a corresponding obligation to provide proof that these are validly held religious beliefs, and that they’re not just personal beliefs.”
As of September 22, restaurants patrons may also be asked to provide proof of vaccination before a meal. While some may cry discrimination, Valler says it’s the law. “The legislation is quite clear for some industries right now, especially where there’s a high risk of transmission, that this is a requirement, that you are required to get proof of vaccination under the Reopening Ontario Act,” he said. “It’s putting some businesses in a tough spot where they want to serve their patrons that have been loyal through the last two years or a year and a half. But at the same time, they’re required to take that proof in order to operate without any sort of recourse or penalties.”
Valler says he expects some people will file complaints with the Human Rights Tribunal of Ontario but doesn’t foresee these claims getting very far. “I don’t know how successful those complaints will be in light of the science behind the efficacy of the vaccines, as well as the government mandates right now.”
After all is said and done, Valler says having a vaccine policy in place makes good business sense. “Having that policy in place is a lot more likely to save on the headaches if someone were to contract COVID at your workplace or at your organization and then commence a claim for negligence in that respect, if you can point towards a vaccination policy,” said Valler. “Employers and businesses have to weigh the risk of having one versus not having one, and the potential liability that comes from both.”
While there are those who say they’re uncomfortable with disclosing their medical history regardless of vaccine status, Valler points out public safety trumps personal privacy every single time. “When the Human Rights Tribunal or the Ontario Labour Relations Board were considering mandatory testing, privacy was ranked the lowest in comparison to safety for one’s coworkers,” said Valler. “When it comes to the overall safety of the general public, and coworkers, and patrons, it does rank lower than the actual safety itself.”
Beyond the legal ramifications of proof of vaccination, Simcoe-Muskoka’s medical officer of health, Dr. Charles Gardner, indicated folks should take into account the greater good. “It’s a balance of needs; essentially, the need of people to be protected from transmission from others and the need for work environments and public service environments to be safe, balanced with individual choice and free and informed consent.”
“We are responding to the pandemic of the century,” added Gardner. “We know that getting a very high immunization rate is necessary to control the pandemic to control what could otherwise be a very severe wave of COVID-19.”
“We think that it is important for the protection of those work environments, for the people that are there, and for the patrons as well, that there be in place vaccination policies that heavily encourage vaccination for those that work there, while also recognizing the Human Rights Code and recognizing the need to accommodate those with medical exemptions,” concluded Dr. Gardner.
As of September 22, proof of vaccination will be required at restaurants and bars (excluding outdoor patios, delivery, and takeout), nightclubs, meeting and event spaces, sports and fitness facilities, sporting events, casinos and other gaming centres, concerts, theatres, racing venues, indoor water park areas, and adult entertainment venues.
When the system launches, Ontarians will need their current vaccine receipt along with a photo ID to enter non-essential businesses. If you have a green photo OHIP card, you can download or print your receipts from the provincial government website. Those with a red and white health card can call the Provincial Vaccine Booking Line at 1-833-943-3900.