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No ‘right to accommodation’ under rights Code for unvaccinated based on ‘preference’: OHRC

Wednesday, September 22, 2021 @ 3:41 PM | By Amanda Jerome

On Sept. 22, the Ontario Human Rights Commission (OHRC) released a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates, noting that “a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation” under the Human Rights Code.

“Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code,” the statement explained.

The OHRC noted that while the Code “prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.”

“Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship — such as during a pandemic,” the statement stressed.

The policy statement came out the same day the proof of COVID-19 vaccination policy came into effect in Ontario. The provincial government has required citizens to provide proof of vaccination and photo ID to access some non-essential services and facilities.

The OHRC’s statement also noted its position that “mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under” the Code “as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.”

“This applies to all organizations,” the statement explained, stressing that “upholding individual human rights while trying to collectively protect the general public has been a challenge throughout the pandemic.”

“Organizations must attempt to balance the rights of people who have not been vaccinated due to a Code-protected ground, such as disability, while ensuring individual and collective rights to health and safety,” the policy statement said.

The OHRC noted that Ontario’s “proof of vaccine regime says that people who are unable to receive the vaccine must provide a written document, supplied by a physician (MD) or by a registered nurse extended class [RN(EC)] or nurse practitioner (NP) stating they are exempt for a medical reason from being fully vaccinated and how long this would apply. The written document may be required until recognized medical exemptions can be integrated as part of a digital vaccine certificate.”

The commission stated that “exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code.”

“Organizations that are not included in the list of settings but wish to mandate vaccines are encouraged to use the provincial proof of vaccine certificate with the written documentation showing medical inability to receive the vaccine as their way of meeting the duty to accommodate where needed,” it added, stressing the “need to make sure digital proof of vaccine certificates are designed to be fully accessible to adaptive technology, including for smart phone users with disabilities, in accordance with Accessibility for Ontarians with Disabilities Act regulations.”

The commission also stressed that “proof of vaccine and vaccine mandate policies, or any COVID testing alternatives, that result in people being denied equal access to employment or services on Code grounds, should only be used for the shortest possible length of time.”

“Such policies might only be justifiable during a pandemic. They should regularly be reviewed and updated to match the most current pandemic conditions, and to reflect up-to-date evidence and public health guidance,” the statement explained, noting that policies should also “include rights-based legal safeguards for the appropriate use and handling of personal health information.”

The policy statement also touched on enforcement, stressing that “providing law enforcement or any organization with discretionary powers to assess proof of identification and vaccination may result in disproportionate application and impact on members of marginalized and vulnerable communities.”

“Any regime that requires service users to present government-issued documents may also create barriers for people experiencing homelessness or who are undocumented,” it added.

The commission urged “governments and organizations to take proactive steps to make sure any enforcement of vaccine mandates or proof of vaccination policies does not disproportionately target or criminalize Indigenous peoples, Black and other racialized communities, people who are experiencing homelessness, or with mental health disabilities and/or addictions.”

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