Shots Beyond the Court

The Toronto Raptors are finally back to playing basketball games in Toronto, bringing with them a sense of normalcy for fans eager to take theirs seats again at the Scotiabank Arena.

But if you have been following the National Basketball Association’s (NBA) post-game media, you will know that teams across the NBA have been struggling with normalcy, like many employers, as some (albeit very few) players refuse to comply with COVID-19 vaccine mandates. 

Most intriguingly, Canadian basketball star Andrew Wiggins, who now plays for California’s Golden State Warriors, refused to get vaccinated until just a few weeks ago citing a religious exemption to getting the vaccine. Putting aside the fact that NBA players are unionized and most operate under American laws, Andrew Wiggins’ request for a religious exemption draws many parallels for non-unionized Canadian employers facing similar requests under provincial and federal human rights legislation. 

Ontario recently introduced Regulation O. Reg 364/20 creating a legal requirement for certain businesses and organizations to establish a vaccination policy in compliance with any recommendation or directive of the Office of the Chief Medical Officer of Health, its office, or a medical officer of health. While the regulation does not require mandatory vaccination, it requires that a vaccination policy be in place at businesses that are open. Some employers have chosen to make vaccination mandatory or provided alternative options where a worker chooses not to disclose their vaccination status or simply refuses to be vaccinated. There are very limited circumstances however, when an employee may be exempt from mandatory vaccination, particularly under Ontario’s Human Rights Code (“Code”). The two types of exemptions include medical exemptions or a Code-based exemption.

Medical Exemptions

The Ministry of Health has published a guide which makes it clear that medical exemptions from the COVID-19 vaccination will be rare. Among the medical exemptions from the COVID-19 vaccine are severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine or its ingredients and/or a diagnosis of myocarditis and pericarditis – inflammation of or around the heart – caused by receiving a mRNA vaccine. In either case, a worker must have documentation from a professional healthcare worker documenting the exemption. While there may be other limited circumstances where a medical exemption is required, the College of Physicians and Surgeons of Ontario (“CPSO”) has made clear that physicians are to be strict in recommending exemptions and may decline a patient’s request for an exemption given the circumstances of the pandemic. 

Employers are encouraged to assess medical exemption requests on a case-by-case basis and require documentation from a professional healthcare worker in support of a worker’s request. 

Human Rights Exemptions

A valid exemption to the COVID-19 vaccine under the Code is also rare and will most commonly be based on a creed-based exemption, similar to what we know of what Wiggins claimed when requesting a vaccination exemption from the NBA. An exemption under the Code based on creed can include religious beliefs and non-religious belief systems. The Ontario Human Rights Commission recently released a Policy Statement on COVID-19 vaccine mandates that stated that a person who chooses not to be vaccinated based on personal preference does not have the right to be accommodated under the Code. It further added that it is not aware of any tribunal or court decision that found a singular belief against vaccinations amounted to a creed within the meaning of the Code. Therefore, ultimately an individual’s religious belief exempting them from getting a vaccine must be based on an established religious practice. In order for an individual to be exempted from vaccination based on creed, the individual must provide objective evidence that supports their creed. While Wiggins ultimately chose to get vaccinated, it remains unknown what creed-based belief he was seeking vaccination exemption under. 

Employers are encouraged to assess Code-based vaccination exemption requests on a case-by-case basis and request documentation in support of such requests.

The Duty to Accommodate

Under the Code, employers have a duty to accommodate up to the point of undue hardship. Employers and the Ontario Human Rights Commission have provided possible accommodations for employees who refuse to get or disclose their vaccination status. This can include COVID-19 testing, remote work, etc. Accommodation will vary depending on the circumstances of the request and the workplace. In some cases, even if an individual can show that they are truly exempted under the Code from a COVID-19 vaccine, the duty to accommodate does not necessitate employers exempt employees from vaccine mandates altogether. Accommodation requirements or vaccination alternatives may be limited where circumstances may more easily amount to undue hardship such as in the context of a pandemic. 

Advancing Human Rights Claims Under a Collective Agreement

In light of prospective human rights claims based on vaccination exemptions, employers in a unionized environment may be interested in a recent decision of the Supreme Court of Canada called Northern Regional Health Authority v. Horrocks, 2021 SCC 42. Briefly, the decision provides that disputes in a workplace involving human rights under a Collective Agreement, will fall under the exclusive jurisdiction of a labour arbitrator to decide. Put simply, human rights tribunals do not have concurrent jurisdiction to decide workplace human rights issues where a Collective Agreement is in place.  However, it is our view that this decision is likely more specific to Manitoba because of the specific wording in Manitoba’s human rights legislation that provides for deferral to another proceeding, and it remains to be seen how human rights tribunals will respond to this decision. Unionized workers in Ontario will likely still be able to advance concurrent human rights complaints at the Ontario Human Rights Tribunal. 

We will keep you updated on any changes. Email us as at info@goulartlawyers.ca to sign up for our regular newsletter.

In the meantime, we will be grabbing our seat at the next Raps game.