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Mandatory vaccines are coming out but they cannot be one-size-fits-all

Mandating vaccines at universities

As this school year winds down and we look forward to summer weather, teachers and school administrators are giving careful consideration to what next Fall will look like. Accelerated vaccination rates mean an increasing likelihood that this September might be close to resembling what we used to call ‘normal’. Yet there will unquestionably be changes, especially in large communal settings. For example, if you were planning on living on campus at Western University this fall and had no plans of getting your COVID-19 vaccine, you may need to rethink your accommodations.

At the end of May, Western announced that anyone planning on living in residence on the campus or any of its affiliated colleges (Brescia, Huron, and King’s) will need to have received at least the first dose of the COVID-19 vaccine prior to moving into residence, or will have to schedule an appointment to receive the first dose within 14 days of moving in. The decision is contingent on vaccine availability, however, it has been supported by the London-Middlesex Public Health Unit.

There are other exceptions built into the policy as well. The university’s press release states: “those who for medical or other protected grounds under the Ontario Human Rights Code cannot be vaccinated may request an accommodation.” There may be other caveats as the new school year approaches in the Fall, such as travel restrictions or considerations for international students, but that sentence about the Ontario Human Rights Code is key.

How does one institute a compulsory vaccination policy? The answer is never a one-size-fits-all.

The Code

The Ontario Human Rights Code (the “Code”) is the legislation that protects Ontarians from discrimination in key areas such as accessing goods and services, accommodations, and employment. Each area of protection has a list of what is known in law as ‘enumerated grounds,’ which function as protected classes where a person cannot be discriminated against on that basis. While the grounds are slightly different for each area, collectively they address personal characteristics such as age, race, sexual orientation, and disability, just to name a few.

When it comes to accommodation, the Code states that no one can be denied accommodation on the basis of “race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.” This means that Ontarians cannot be denied housing based on any of these considerations, and any instances of such a denial may be subject to a claim before the Ontario Human Rights Tribunal. The Tribunal regularly hears cases involving such denials, and has the power not only to award compensation for any violations of the Code but also for “injury to dignity, feelings, and self-respect.” These damages don’t always come into play but have led to some fairly substantial awards in instances of extreme, blatant discrimination.

The Code is the overarching law that governs how policies are routinely drafted, so that exemptions are made for necessary accommodations. In workplaces, for example, most any policy enacted must take into account the grounds protected under the Code in relation to employment. Any attendance policy should always have an exception for disability, as certain individuals will require time away for disability-related reasons for which they should not be penalized. Otherwise, a policy that strictly lays out that a certain number of absences leads to automatic discipline or dismissal can easily discriminate against disabled employees with serious medical issues. Similarly, when it comes to accommodations, exceptions must always be considered.

Key Drafting Considerations

When drafting any policies, the Code is always there to call attention to exceptions to the rule. A popular example is an exemption made in ‘pet-free policies’ for service animals, which are part of a legally required exemption to not discriminate against those with a disability. News stories arise every few years of business owners who end up in hot water, either by being brought before the Human Rights Tribunal or by being scorned publicly in the media, for their failure to accommodate necessary service animals on their premises.

This does not mean, however, that accommodations must be granted on a whim. Rather, accommodations need to be reasonable under the circumstances for each situation. For example, a small business that does not permit animals due to the proprietor’s serious allergies can often find a way to service customers with service animals outside in front of their premises. In the workplace, accommodations are frequently put into places such as adaptive telephone and computer technology, however, businesses are only required to accommodate short of undue hardship. Completely overhauling a small business may simply not be financially feasible, and would create an undue hardship that cannot be reasonably accommodated.

The other accommodation that may be the most logical in policy drafting is to create a specific set of exemptions, similar to what Western University has done. In Western’s case, the exemptions are similarly in line with the Immunization of School Pupils Act (the “Act”), which mandates the immunizations of school-age children in Ontario. The Act offers similar exemptions for disability and religious accommodations, but the requests for accommodations must be made formally in order to apply. The Act states “Subsection (1) does not apply to a parent who has completed an immunization education session with a medical officer of health or with a medical officer of health’s delegate that complies with the prescribed requirements, if any, and who has filed a statement of conscience or religious belief with the proper medical officer of health.” These accommodations are readily available, but it is also reasonable to have a formal procedure in place before they are implemented. Also, the University has not prevented unvaccinated students from attending classes. They are still welcome to enrol, however, they will simply need to find alternate housing.

Final Thoughts

Our human rights framework within Ontario is designed first and foremost to protect Ontarians from discrimination. Individuals should not be prejudiced, whether that is forced to or prohibited from taking part in something, on account of their race, creed, age, sexual orientation, religious beliefs, or disability. This often means that a person should not be precluded from doing something, but it can also mean that they must not be made to do something, again with exceptions. When it comes to mandatory vaccine policies, exceptions must be made for valid medical or religious reasons.

If you require support in assembling and filing for an exemption based on a protected human rights ground, we are able to help. Similarly, if you believe that you have been discriminated against based on one of these protected grounds, contact our office today to set up a consultation. We also work with numerous business and property owners in the Cambridge, Kitchener, and Waterloo areas. If you are looking to draft a policy for your business and need assistance figuring out accommodations, contact us to learn more about how we can help.