Worker requested exemption but refused to provide clear medical information
An employer was entitled to rescind a job offer to a worker who didn’t provide sufficient medical information supporting her request for exemption from its vaccine mandate during the pandemic, the Alberta Human Rights Tribunal has ruled.
In September 2021, the University of Calgary implemented a policy requiring all staff to be fully vaccinated against COVID-19 in response to the Alberta government’s restrictions for service providers and post-secondary educational institutions during the pandemic.
The university had a form for requesting accommodation for medical reasons and another form to request exemption for other reasons such as religious beliefs. The medical exemption form listed reasons that the province’s chief medical officer of health had outlined for exemptions, which all related to physical disabilities. There was also a section on the form for additional information where a medical professional could provide other reasons to exempt an individual from the vaccine requirement.
The worker applied for a temporary instructional position and on Nov. 2, 2021, the university offered her employment starting on Jan. 1, 2022. On Nov. 15, the worker revealed that she wasn’t vaccinated against COVID-19 and requested an exemption from the requirement. The university asked her to complete its medical exemption form with her physician to support her request.
However, the worker responded that her physician refused to sign the form and asked if her psychologist could complete it, as her reason for not getting vaccinated was that she had anxiety about injections that had increased during the pandemic, causing distress and impairment. The university said that a physician needed to provide the information.
Information not clear on need for accommodation
The worker and the university had further discussions around accommodation and the worker provided two psychologist letters. One letter didn’t mention vaccines or injections and the other described the increase of her anxiety over injections during the pandemic and supported the worker’s accommodation request, but it didn’t indicate that the worker’s mental disability prevented her from getting the COVID-19 vaccination. The letters were also based on an assessment performed several months previously.
On Dec. 9, the worker’s union representative asked the worker for additional information to support her exemption request, but the worker refused. One week later, on Dec. 16, the university rescinded the employment offer.
The worker made a human rights complaint alleging discrimination in the area of employment based on mental disability.
The Director of the Alberta Human Rights Commission found that the worker did have a mental disability, but the exemption program required an applicant to provide “specific medical information supporting their exemption request” and that information had to be provided by a physician or a registered nurse. The director also found that it was reasonable for the university to seek medical information to clarify the worker’s need for a vaccine exemption, as the psychologist letters did not explain how her disability prevented her from getting vaccinated. As a result, the worker didn’t co-operate in the accommodation process, said the director in dismissing the complaint.
The worker requested a review of the director’s decision by the tribunal.
Duty to accommodate
The tribunal noted that employers have a duty to reasonably accommodate mental disabilities to the point of undue hardship, but a worker must establish that they need the accommodation by providing reasonable medical information. This information must provide enough for the employer to understand the worker’s accommodation needs and for physical and mental disabilities, the information usually must come from medical professionals, said the tribunal.
The tribunal agreed with the director that the psychologist letters didn’t clearly identify that the worker didn’t receive the vaccine due to a mental disability. There was also the context of the ongoing pandemic, health restrictions, the risk to staff and students, and advice from the provincial chief medical officer of health, the tribunal said.
The tribunal noted that the university’s insistence on a physician completing the exemption form was questionable since the worker’s disability was mental, but in this case a registered psychologist still needed to provide clear information on why the exemption was necessary – which the letters provided by the worker did not.
In addition, the worker refused to provide additional medical information to the union to help it advance her accommodation request, the tribunal said.
“The record suggests that at all times, the [university] was prepared to accommodate legitimate medical conditions, provided it had adequate medical information to support the request,” said the tribunal. “However, the [worker] had a duty to provide reasonably necessary clarifying information to support her request for accommodation and she chose not to provide that.”
The tribunal upheld the director’s decision to dismiss the worker’s complaint. See Dunseith v. University of Calgary, 2024 AHRC 9.
