Guest post by Toronto lawyers Neva Lyn Kew and Tommy Hong

In 2022, employers and organizations across the country are in uncharted territory, coping with a new reality as they implement mandatory vaccine policies.

While these policies can be an effective way to create and maintain a safe workplace or study environment, they also carry human rights, privacy and other legal implications. Navigating the legal considerations that arise when an employee requests a vaccine exemption can be tricky. It must be balanced with the need to protect others during the pandemic.

Lawyer Neva Lyn Kew

Most businesses and institutions should be prepared to offer accommodation and exemption from their vaccination policies based on protected human rights grounds. Particular protected grounds under human rights legislation vary from province to province (and under federal legislation).

It is important for employers to make an objective and fair decision to avoid potential litigation, starting with examining the reasons for exemption. Most exemption requests appear to be based on one of two grounds protected in all Canadian jurisdictions: medical reasons (often referred to in human rights legislation as disability) and religious belief (sometimes called creed).

A team of lawyers at Borden Ladner Gervais LLP has been dedicated to the analysis and processing of these exemption requests. In our experience, medical exemption requests form only a small minority of the total requests received. Successful medically-based requests are usually accompanied by documentation from a health professional confirming the need for medical accommodation. The Ministry of Health guidelines on medical exemptions to coronavirus vaccination can be helpful in assessing these types of requests.

By contrast, religious exemption requests comprise most of the requests. Canadian law protects an individual’s freedom of religion or belief, but those are subject to reasonable limits. At a high level, to be successful in their request, an individual must establish that they have a sincerely held “practice or belief, having a nexus with religion, which calls for a particular line of conduct.”

Whether the employee has a sincerely held belief or a faith-based calling to decline the vaccination can be thorny. The key consideration in this analysis is the sincerity of belief, which tends to be expressed through simple, non-argumentative statements disclosing a consistent pattern of faith-based conduct — in other words, indications that the belief or practise consistently manifests in the individual’s everyday conduct and isn’t isolated to the issue of coronavirus vaccination alone.

Template vaccination exemption letters are being widely circulated online, often used to support religious-based requests in particular; their proliferation makes it difficult to distinguish genuine requests from invalid ones.

Lawyer Tommy Hong

A recent case is worth noting. In November 2021, an arbitrator rejected a grievance filed against Paragon Protection over its COVID-19 vaccine policy. This case is significant because, in our understanding, it is the first one to fully analyze whether a mandatory vaccine policy complies with an employer’s obligations under the Ontario Human Rights Code, the Occupational Health and Safety Act, and a collective agreement.

This case supports imposing mandatory vaccination policies that require employees to be fully vaccinated, “or else” face various employment-related consequences, such as relocating to a different worksite, being placed on unpaid leave or even being terminated for cause.  However, following the Paragon decision, cases deciding the reasonableness of mandatory COVID-19 vaccine policies have been divided based on the unique, factual contexts of each case. As such, employers will need to consider their own unique circumstances when crafting their mandatory COVID-19 vaccine policies.

The introduction of governmental vaccination mandates is an encouraging sign for employers, institutions, and other entities wishing to implement vaccination policies to promote health and safety and prevent the spread of the virus and its variants. But every workplace comes with its own unique set of challenges and considerations. There are no one-size-fits-all solutions. Those grappling with an onslaught of exemption requests should be prepared, proceed with caution, and seek legal advice when necessary.

Kew and Hong are lawyers at Borden Ladner Gervais in Toronto. Kew focuses on civil litigation and arbitration. She advises on employment disputes, healthcare litigation, contracts and tort disputes. Hong is a management-side labour and employment lawyer. He advises on terminations, contracts and policies. He represents clients in wrongful dismissal lawsuits and human rights complaints.