Q&A with legal expert about medical and religious accommodations
Many employers are considering mandatory vaccination policies to comply with the obligation to provide a safe environment for workers, and cut down on the likelihood of a sick workforce.
But how should requests for exemptions be handled? Canadian HR Reporter spoke with James Fu, partner at BLG in Toronto to find out what goes into a legal exemption.
Q: How should employers prepare for exemption requests?
A: “The first thing to do when receiving a vaccine exemption request is to first take a deep breath [because] no one goes to an HR professional course to deal with assessing vaccine exemptions.
“The next thing is [to decide] what framework should be used to assess these because we want to make an objective and sound decision… we want to do the right thing and want to make sure that eligible exemptions are granted.
“The second reason for this framework is because of potential litigation down the road so it’s important to make sure that there’s a good record in place, a good reasoning process, a framework to go through so that if, for whatever reason, a decision is challenged or otherwise brought to litigation, there is a process that we can say we followed and it was reasonable, and it was appropriate in the context.
“How you communicate this to the employee, whether it’s in writing or in person or verbally, just depends on the workplace [but] probably in writing is a good idea. But be careful of what’s in the writing because if there’s any potential litigation, inevitably, that letter is going to become part of the record. So we don’t want to say anything in there that we might come to regret.”
Q: What types of exemptions would be accepted?
A: “The first is medical exemptions and those are fairly narrow and the less common of the two because the public health authorities in almost all provinces have stipulated what is appropriate in terms of a medical exemption from having COVID vaccination.
“In most contexts... it should be only two main grounds: it’s either allergic reaction [or] a contraindication against the COVID-19 mRNA-type vaccine.
“The second one is religious or faith-based related exemptions and even with these ones… they’re very rarely granted.
“To be successful in a religious exemption request, the employee has to establish that they have a sincerely held practice or belief, which has to have a nexus with religion or faith-based, which calls for a particular line of conduct to decline the vaccination.
“The human rights tribunals all throughout Canada pretty much have indicated that singular beliefs or personal preferences, they’re not going to have a robust-type analysis, and the idea that it really has to be a sincere, sincere belief.
“There are certain religions but they’re very limited in terms of the amount of religions that say that you cannot get vaccinated.
“More often, it’s appropriate to ask for an affidavit or something from the employee; a sworn statement that asked them about their beliefs.”
Q: How can employers ensure requests forms are legal and valid?
A: “Template letters that can be downloaded from the internet, which state, ‘I’m a member of whichever religion or creed that’s on that letter and so I’m exempted from vaccination’… usually don’t pass the rigours of the test.
“What employers can do is Google to take a look and see if it’s a template letter. Usually, they the can use the old adage ‘If it sounds too good to be true, it probably is too good to be true.’
“If it’s a letter, it’s a one-page or two-page, which doesn’t look like it’s drafted by the employee himself or herself, it probably is a template letter and assess those accordingly.”
Q: What about people claiming personal preference not to take the vaccine?
A: “Human rights commissions have indicated that singular beliefs and personal preferences will not or are very unlikely to be a ground for protection of the Human Rights Code to be exempt from vaccinations.
“It’s another case of saying, ‘I’m against the coronavirus vaccination,’ for whatever reason but it’s not based on a code-based ground, it’s based on personal preference or a belief.”
“Some provinces have the grounds of political belief or political association but only a limited number of provinces have that ground: Manitoba has it, B.C. has it… but that’s an additional ground for employers to consider.”
The TTC recently fired more than 300 workers who weren’t vaccinated while the province of Quebec also is musing about taxing those who refuse the inoculation.
Q: Do all valid exemptions have to be accommodated?
A: “Even if someone does have a valid religious ground for being exempted or a medical ground for be exempted, there is the obligation to accommodate the obligation up to the point of undue hardship.
“If the person can work from home, that may very well be a reasonable accommodation. [But for] many hospitals, to the extent that it’s a health and safety matter, then it could very well be a case where the person could be granted a religious exemption but it may amount to undue hardship to accommodate.”