Employers have had to navigate many unique legal issues this year, including how to deal with the issue of coronavirus vaccines and employees. One question that will continue to pop up in 2022 — what are the legal considerations for employers when a worker asks for a vaccine exemption?
In the last few months, both the federal and provincial governments across Canada have started implementing vaccination mandates and other measures like vaccine passports to reduce the risk of coronavirus transmission and to protect public health. In line with these mandates, more businesses and institutions are beginning to introduce mandatory vaccination policies requiring their respective employees, patrons or other individuals to be fully vaccinated to remain actively employed and/or to attend their physical facilities.
While mandatory vaccination policies can be an effective way to create and maintain a safe workplace, study or business environment, they also carry human rights, privacy and other legal implications. In turn, entities implementing these policies can expect to receive requests from individuals requesting they be exempted from the vaccination requirements under the policy.
Early on, we formed a team of lawyers at Borden Ladner Gervais LLP dedicated to the analysis and processing of these exemption requests. The following is a brief list of observations that may be useful to employers and other entities on the receiving end of these requests.
Grounds for exemption
Most businesses and institutions will be familiar with their duty to accommodate under human rights legislation and entities that implement mandatory vaccination policies should anticipate offering accommodation and exemption from their vaccination policies based on protected human rights grounds or characteristics.
Particular protected grounds under human rights legislation vary from province to province (and under federal legislation), but most exemption requests appear to be based on one of two grounds protected in all Canadian jurisdictions: medical reasons (often referred to in human rights legislation as disability) and religious belief (sometimes called creed).
Medical exemption requests
In our experience, medical exemption requests form only a small minority of the total requests received. Successful medically-based requests are usually accompanied by documentation from a health professional confirming the need for medical accommodation. Our team has been cautious in rejecting non-compliant medical opinions out of hand, but have relied on ministry of health guidance on medical exemptions to coronavirus vaccination in assessing these requests.
Religious exemption requests
By contrast, exemption requests based on religious belief or creed comprise the vast majority of requests we’ve encountered. At a high level, to be successful in their request, an individual must establish that they have a sincerely held “practice or belief, having a nexus with religion, which calls for a particular line of conduct” — in this context meaning a faith-based calling to decline the coronavirus vaccination.
The key consideration in this analysis is the sincerity of belief, which tends to be expressed through simple, non-argumentative statements disclosing a consistent pattern of faith-based conduct — in other words, indications that the belief or practice consistently manifests in the individual’s everyday conduct and isn’t isolated to the issue of coronavirus vaccination alone.
Template letters abound
With the politicization of coronavirus vaccination, the issue of religious accommodation from vaccination mandates appears to have become plainly adversarial in nature. Template vaccination exemption letters are being widely circulated online and organizations and individuals alike are talking strategy and sharing request materials in hopes to secure religious exemption. These template documents are often used to support religious-based requests in particular and their proliferation makes it difficult to distinguish genuine requests from invalid ones.
Identifying whether a template document has been used can be difficult and becomes easier once one has some familiarity with the passages that are commonly used. However, a quick Google search can sometimes assist. Simply put — if it sounds too good to be true, consider searching the text online to determine whether a template document has been used. At all times, entities must do their best to make objective and sound decisions despite the adversarial context.
The old proverb, different strokes for different folks continues to be true when it comes to the analytical approach for the processing of exemption requests. Entities can look for reasons to deny requests or for reasons to accept them or strike a balance between the two. The approach adopted will depend on each entity’s particular risk tolerance, though the adversarial context tends to favour a more guarded approach.
Caution: Legal issues ahead
The introduction of governmental vaccination mandates is an encouraging sign for employers, institutions and other entities wishing to implement vaccination policies as a means to promote health and safety and prevent the spread of the coronavirus.
However, the legal issues surrounding mandatory vaccination policies and corresponding exemption requests are complex. Entities grappling with an onslaught of exemption requests should proceed cautiously and should seek legal advice if necessary when making the decision to accept or reject.
Neva Lyn Kew is a lawyer with Borden Ladner Gervais LLP in Toronto.