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Employer AdviceOctober 4, 2021by Olivia CicchiniCOVID-19 Vaccine & Workplace Human Rights Accommodation

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Human rights accommodation in the workplace has been a major topic of late.

Besides standard accommodation requests, businesses have been grappling with granting accommodations based on the COVID-19 vaccine. This blog discusses two protected grounds under human rights legislation in Ontario, Alberta, and British Columbia.

In addition to the rules around standard workplace accommodation, we also discuss the accommodation needs relating to COVID-19 vaccination.

Disability

People with disabilities have long experienced exclusion, marginalization, and discrimination. They often have negative experiences as a result of societal structures and harmful beliefs premised on ableism.

For this reason, there are many disabilities that are protected under human rights legislation such as:

  • Physical disabilities
  • Learning disabilities
  • Hearing and vision disabilities
  • Mental health disabilities and addiction
  • Environmental sensitivities, and more.

As most employers have adopted an equal opportunity approach to hiring, they must be mindful of potential accommodation requests that may arise.

Accommodations will differ depending on the nature of the disability. They must be assessed individually.

Some common accommodations provided to support people with disabilities include:

  • Modified work schedules
  • Flexible leave policies
  • Modification or purchase of equipment and devices
  • Modifications to the physical workplace.

People with certain disabilities and medical conditions are unable to receive the COVID-19 vaccine as it could adversely affect them.

While these cases are rare, workplaces with vaccine policies must be flexible. Employers should ensure they are accommodating these individuals to the point of undue hardship.

For example, if an office worker is unable to get vaccinated due to a documented medical exemption and is able to complete their work from home, remote work may be the most reasonable accommodation.

Conversely, if an employee works in a setting where their physical presence is necessary (long-term care home, hospital, etc.) it will likely be more difficult to provide accommodation and may reach the point of undue hardship.

Undue hardship is an action that requires significant difficulty or expense. In the context of accommodation, an employer reaches the point of undue hardship when the accommodation request would be too large a burden (either financially, operationally, or otherwise) to implement.

Religious Belief/Creed

As Canadian society has grown more religiously diverse over the years, questions about the appropriate nature and limits or rights relating to religion have become an important aspect of employment.

People of different faiths will have differing requests for accommodation. For example, employees who are of the Jewish faith will require a day off work in the fall of each year for Yom Kippur. Muslim employees may request accommodation to set aside time or a private space for daily prayer.

Other possible religious-based accommodations are making changes to dress codes or uniforms and providing special dietary options when serving food at work.

Like the vaccine exemptions for certain disabilities, some individuals will be unable to get vaccinated due to certain religious beliefs. While these cases are few and far between, they must still be accommodated to the point of undue hardship.

One option for documenting a religious exemption is to submit a commissioned affidavit detailing the employee’s religion and why their religion prohibits them from receiving the vaccine.

This document is to be taken seriously because it is sworn by the employee and lying in one could result in the employer pursuing legal action or a with cause termination.

Since vaccine exemptions for religious reasons are more difficult to prove than medical ones, each instance should be reviewed before granting the accommodation.

Anti-vaccine sentiments based on personal preference or opinion are not considered creed or religious beliefs and don’t have to be accommodated.

Do you need help creating a vaccination policy for your workplace?

Our experts can help you develop company policies as well as with any other HR, health and safety, or employment advice you need. See how we have helped other small and medium businesses get their business compliant with provincial legislation.