Proof of Vaccination – Government Response
Across Canada, many provinces are implementing “vaccine passports” – in other words, government authentication proving the individual is fully vaccinate for COVID-19. This has led to a rapid increase in people vaccinating literally overnight. In Ontario, the government’s announcement introducing its version of a vaccine passport (called a “vaccine certificate”) led to a doubling of COVID-19 appointments the very next day!
But each province has taken a different approach to enacting this health measure, and the response is not a “one size fits all approach”. In fact, some provinces are putting in place more stringent requirements than others. For instance, in Ontario, people will only require proof of vaccination (along with valid photo ID) to access only certain “non-essential” public events, services and businesses, including:
- Restaurants and bars (but not outdoor patios, delivery or takeout)
- Nightclubs (including outdoor areas of the establishment)
- Meeting and event spaces (e.g., banquet halls and conference/convention centres)
- Sporting and fitness facilities, such as gyms, fitness and recreational arenas with the exception of youth recreational sport
- Sporting events
- Casinos, bingo halls and gaming establishments
- Concerts, music festivals, theatres and cinemas
- Strip clubs, bathhouses and sex clubs
- Racing venues (e.g., horse racing)
As the list above shows, the vaccination requirement is only in select settings. By contrast, in British Columbia, the province has opted for a more robust approach that include government-issued “Vaccine Card” (including the person’s name, birth date and health number), and will cover a broader range of public settings, including all of the above plus:
- Outdoor dining at restaurants, pubs and bars
- Indoor organized group recreational classes and activities like pottery and art
- Post-secondary on-campus student housing (with students requiring at least 1 vaccine)
At the municipal level, many cities are also implementing mandatory vaccination policies at the workplaces. For instance, the City of Toronto introduced a requirement for all of its employees to be fully vaccinated by October 30, 2021, which it calls a key element in its plan to protect employee health and safety.
To prove their full vaccination, employees will be required to provide a government-issued receipt of a vaccination, such as the one sent by the Ministry of Health after receiving a vaccine. Subject to valid medical or religious exemptions, the City of Toronto announced that all employees who do not comply with this policy may be subject to discipline, up to and including termination of employment. In requiring accommodation to justify not receiving vaccination, employees will require written proof, such as medical documentation from a physician.
Ontario Employers and Workplaces
Taking their cue from the government’s response, many private employers have also introduced mandatory vaccination policies in their own workplaces. For instance, the list now includes all of Canada’s Big Banks, Maple Leaf Sports and Entertainment, Seneca College, University of Toronto and University of Ottawa. However, this list is likely to continue growing, as a recent survey found that at least 62% of Canadian employers plan to require their employees to be fully vaccinated.
However, at this time, the response of employers forcing employees to vaccinate remains a patchwork. Most importantly, it will be difficult for employers (in most cases) to terminate employee’s for “just cause” (intentional misconduct justifying termination without notice or severance pay) for violating policies to vaccinate, and will generally be required to provide employees with a financial severance package, in addition to potential defending wrongful dismissal claims and human rights complaints.
Can an Employer Require Employees to Get a Vaccination?
In short, the answer is “yes.” Under Ontario’s Occupational Health and Safety Act, employers have a duty to keep workplaces and employees safe. This means that employers have very strict requirements to keep their workers (and any member of the public who interacts with the workplace, such as customers) safe, including by taking all reasonable precautions to ensure their health and safety. However, like all general rules, this one also comes with exceptions. In fact, employers will be required to consider (and if proven, provide accommodation for) employees who have valid medical or religious reasons not to be vaccinated, such as:
- medical exemption – it may be the case that certain circumstances, such as a person’s age or pre-existing health conditions, may justify not receiving a vaccine
- religious exemption – a sincerely held (legitimate) religious beliefs or values against receiving medical treatments substances into one’s body, such as a vaccine.
With respect to potential religious exemptions, should be noted that in a landmark Supreme Court of Canada case involving parents who refused medical treatment for their child based on religious beliefs, it was held that the right to freedom of religion is “not absolute,” and the government has the power to intervene to protect the “most vulnerable members of society” under the legal principle of parens patriae (legal protector of citizens unable to protect themselves).
Although this case was decided under the constitutional Charter of Rights and Freedoms (which only applies to government action), the fact that the Court found religious rights can be limited for the protection of other members of the public provides a good starting point for the courts to similarly interpret legal challenges against employers under the Human Rights Code. Most importantly, this case will likely be relied on by governments across Canada to support their mandatory vaccination policies when legal challenges eventually reach the courts.
Doctor’s Notes for Medical Exemptions from COVID-19 Vaccine Requirements
It is no secret that many patients are asking doctors to write notes or complete forms exempting them from getting vaccinated (oftentimes, this includes employees seeking to avoid the COVID-19 vaccination required by employers).
In response, the government has required doctors in Ontario who are asked by patients to provide information supporting a medical exemption from receiving a COVID-19 vaccine, to ensure the patient has a legitimate medical condition that would warrant an exemption.
In fact, the government has indicated that, generally speaking, it will be difficult for patients seeking a medical exemption from the COVID-19 vaccination requirement:
“Generally speaking, there are very few acceptable medical exemptions to the COVID-19 vaccination (e.g., an allergist/immunologist-confirmed severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine or to any of its components that cannot be mitigated; a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine).”
Given the rarity of these exceptions, and in light of the fact that vaccines have been proven to be both safe and effective, any notes written for patients who qualify for a medical exemption need to clearly specify:
-
- the reason they cannot be vaccinated against COVID-19 (i.e., document clear medical information that supports the exemption); and
- the effective time period for the medical reason (i.e., permanent or time-limited).
As such, it may very well be the case that doctors will be justified in declining a request by patients to write notes or complete forms for an medical exemption.
Call Today for Help
If you are an employer or employee, please contact Bune Law at 647-822-5492 arrange a consultation with an employment lawyer in the Toronto area, so that we can discuss your specific employment matter in detail, explain employment law as it applies to your situation, and then determine whether you need our assistance and how we can help.
If you have been fired from your job and feel you deserve fair compensation, call Bune Law for help. When you call, you will speak with an experienced employment lawyer assisting with severance package review and negotiation. Call today to learn about your legal rights.
Disclaimer: The content on this website and blog is not legal advice or legal opinion of any kind, and is only to provide general information. It is in no way particular to your individual case and should not be relied upon in any way. The outcome of a legal matter depends on its unique circumstances, and prior successes are not indicative of future results. No portion or use of this website or blog will establish a lawyer-client relationship with the author, this law firm or any related party. Should you require legal advice for your particular situation, please fill out the form below, or call 647-822-5492, to request an initial consultation.