In our recent blog, we discussed the consequences that employees may face for not receiving government-approved COVID-19 vaccinations. We also touched on the legitimate medical or religious reasons that some employees may have for refusing or being unable to be vaccinated. In this blog, we’ll take a deeper dive into what sorts of exemptions employers should be prepared to expect (if they have not already come across them) and the steps they can take to determine whether employees have a valid request for an exemption from vaccination, along with the required accommodations.
Types of COVID-19 Mandatory Vaccination Exemptions Employers May Encounter
Employers should keep an eye out for valid medical and religious/creed-based exemptions employees may have from vaccination.
The College of Physicians and Surgeons of Ontario has provided some examples (of which it emphasizes there are few) of acceptable medical exemptions from the COVID-19 vaccination:
- an allergist or immunologist-confirmed severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine or any of its components, or
- a diagnosis of myocarditis and pericarditis after receiving an mRNA vaccine.
Employers may also encounter employees who assert that their personal opinions or singular beliefs should qualify as valid grounds for exemption from the COVID-19 vaccine. However, these objections are unlikely to support such an exemption. Some recognized authorities from established religions have made recommendations against getting the COVID-19 vaccination that fetal cell lines from elective abortions have been used in the research and testing of the COVID-19 vaccine. It remains to be seen what position courts will take with respect to whether this qualifies as a valid reason for an exemption from the COVID-19 vaccine.
An Employee Requests an Exemption from Vaccination. Now What?
Whether the employee has provided written or oral communication of a request for an exemption from their employer’s mandatory vaccination policy, the employer has a duty to inquire and the employee has the duty to participate in the accommodations process, if any.
What Information Can an Employer Request?
Employers should ask employees whether the employee has a medical or religious/creed-based reason for the exemption request. Normally, if the employee expresses a medical reason for remaining unvaccinated, employers should avoid asking for the exact medical reason as this could amount to a diagnosis; however, the employer should request that the employee provide documentation from an appropriate medical professional to support their request. If an employee expresses a religious/creed-based reason for remaining unvaccinated, the employer should ask the employee for some form of verification, like a note from a religious authority, such as the employee’s priest.
In our previous blog, we provided suggestions with respect to next steps for employers dealing with employees who are not entitled to a legitimate exemption from a mandatory COVID-19 vaccination policy. We also discussed accommodations for those employees who are entitled to a valid exemption. Employers should keep in mind that the duty to accommodate employees who qualify for accommodations is not infinite. The employer only has a duty to accommodate the employee up until the point of undue hardship.
According to the Ontario Human Rights Commission, the following factors can be considered in determining whether an employer has reached this threshold: cost, any outside sources of funding, and health and safety requirements. No other considerations should be taken into account under Ontario law.
If an unvaccinated employee has been successfully working remotely and could likely continue without much issue, then a work-from-home arrangement for the employee might be a reasonable accommodation. However, notably, the federal government has not taken this approach in their mandatory vaccination policy, which mandates even those who could work remotely be vaccinated as well. If an unvaccinated frontline hospital worker continues to refuse to get vaccinated, the employer may have a better case for claiming that it has reached the point of undue hardship in its ability to accommodate the employee’s refusal/inability to get vaccinated. Note that the accommodation/undue hardship analysis will only come into play if the employee has a legitimate and supported reason for an exemption. Personal preferences not to be vaccinated does not need to be accommodated.
Given the rapid pace at which laws, regulations, and public health guidance are evolving, we expect to see more changes and clarity on this topic in the weeks and months to come.
If you need help with navigating exemptions from mandatory COVID-19 vaccination policies, get in touch for a consultation.
If you’re looking to reopen the office and don’t know where to start, please check out our OMG the Office is Open!!! Toolkit (which is currently deeply discounted). This DIY toolkit has 20 Employment Law Resources to help get you back in the office safely and smoothly, while meeting your company’s legal obligations.