Recently, Zubas Flett Lawyer, Richel Castaneda, spoke with Jeffrey Smith of Canadian HR Reporter. The opinion piece, which discussed vaccination policies and whether they breach the Ontario Health and Safety Act, is below.
‘A policy’s request for proof of vaccination is not a breach in itself of the OHSA’
The Ontario Labour Relations Board has dismissed a worker’s complaint that her employer’s vaccination policy breached protections of employee health information under the province’s occupational health and safety legislation.
The complaint didn’t really fall within the scope of the legislation as the employer never tried to access the worker’s vaccination status without her consent – but it could have anyway under temporary legislation passed during the pandemic, according to Richel Castaneda, an employment lawyer at Zubas Flett Law in Toronto.
“[The worker was] claiming that there was a contravention where an employer cannot seek to gain access of the employee’s medical information or health record without the worker’s written consent,” says Castaneda. “There are three things for an exemption – an employee has given their consent, it’s by a court order, or there’s a statute.
“[A regulation in force at the time] actually authorizes the employer to gain access to the employee’s vaccination records, even without her consent.”
The worker was an employee of the Toronto Public Library (TPL). On Sept. 2, 2021, TPL issued a mandatory vaccination policy for all employees and volunteers. It stated that TPL employees were required to be fully vaccinated against COVID-19 by Oct. 30. Employees were also required to provide proof of vaccination.
TPL employees also had to disclose their vaccination status by Sept. 20. The policy stated that vaccination information would only be used “to the extent necessary for implementation of this policy, for administering health and safety protocols, and infection and prevention control measures in the workplace.”
The policy indicated that employees who didn’t comply could be subject to discipline, up to and including dismissal. It also allowed for employees who were unable to be vaccinated due to a human rights-related ground could request accommodation.
The worker did not disclose her vaccination status by the deadline and was placed on unpaid suspension on Nov. 2. Two months later, on Jan. 2, she still hadn’t provided any information so TPL terminated her employment.
The worker made a complaint to the Ontario Ministry of Labour, Training and Skills Development. She claimed that the requirement to disclose vaccination status without written consent was a violation of ss. 63(2) of the province’s Occupational Health and Safety Act (OHSA) – which states that “no employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.” She added that the threat of termination “invalidates any consent and establishes that coercion has taken place.”
A ministry inspector investigated the worker’s complaint and found that there were no contraventions of the OHSA. The inspector pointed to an exemption to ss. 63(2) under Regulation 364/20 of the Reopening Ontario Act – passed during the pandemic – which required businesses and organizations to implement vaccine policies “in accordance with any advice, recommendations and instructions issued by the Office of the Chief Medical Office of Health.” On Aug. 20, Toronto’s medical officer of health had strongly recommended that Toronto employers institute COVID-19 vaccination policies that required workers to provide proof of vaccination, and this crystallized TPL’s legal obligation to comply with the regulation, said the inspector.
The worker appealed to the board, arguing that the medical offer of health’s recommendations were voluntary and not intended to be legally enforceable. She also argued that there was no legitimate need for health records disclosing vaccination status because TPL already had a safe work environment and obtaining such records would not increase health and safety.
No attempt to obtain information after refusal
The board found that when the worker rejected the request for her vaccination status, TPL didn’t try to gain access to it, so there was no obtaining of her health information without her consent and no coercion since she didn’t ever provide consent. The vaccination policy invited the worker to disclose her vaccination status or seek accommodation, which was allowed under ss. 63(2) of the OHSA, said the board.
However, the board noted that TPL was authorized to seek to gain access to the worker’s vaccination status, since it was authorized do so by “the strong recommendations” of the chief medical officer of health under Regulation 364/20.
When it came to the specifics of the worker’s complaint, ss. 63(2) didn’t apply because the worker never provided her consent and TPL didn’t try to go behind her back to get her vaccination status, says Castaneda.
“If [the worker] actually did provide consent, and [TPL] tried to gain access to her vaccination status, then she might have argued that her consent was coerced,” she says. “Her employer did not make any further inquiries after she denied that request to provide her vaccination status.”
“What’s really interesting, too, is that even if she did not provide her consent, the vice-chair [of the board] said that there’s an exemption because it’s authorized by the statute – Regulation 364/20 actually authorizes the employer to gain access to vaccination records, even without her consent,” Castaneda adds.
The board also found that the recommendations by the Toronto medical officer of health included an instruction that policies should require workers to provide proof of vaccination. Although the recommendations were voluntary, the board found that suggesting that employers were not obliged to adopt the processes recommended by the medical officer of health was contrary to the regulation, and Toronto Public Health’s statement that they were not intended to be legally enforceable was outside its jurisdiction.
The board agreed with the inspector’s decision that TPL’s vaccination policy and its requirement to disclose her vaccination status did not contravene the OHSA and it dismissed the complaint.
Castaneda points out that the Ontario government revoked Regulation 364/20 on April 27, 2022, so she’s interested in seeing how any similar complaints that are still in the pipeline are handled by decision makers – particularly since many employers still have vaccination policies in place.
“[Decision makers] have relied on a pre-pandemic decision from 2004, the North York General Hospital and the Ontario Nurses Association, which held a firm stance that ss. 63(2) is not a prohibition for an employer to directly ask a worker about their vaccination status,” says Castaneda. “So they’re interpreting this specific section to state that this isn’t about the consequences of not complying with a vaccination policy, but the purview of that subsection is really how an employer may request a health record from a third party – a policy’s request for proof of vaccination is not a breach in itself of that subsection under the OHSA.”
Ultimately, the lesson for employers is that they should give employees plenty of advance notice of new or changed policies, use clear language in the policies, and provide for accommodation where necessary, Castaneda says.
“The language must be clearly laid out, what changes they’re making, and any kind of consequences for non-compliance should be should be clearly stated. It should provide for an employee to engage in conversation of what accommodation they would require, so that the employer is not in breach of the Human Rights Code, along with that idea that a workplace policy should be consistent across the board.”
If you have any questions or inquiries regarding employer responsibilities, contact Zubas Flett Law at 416-593-5844 or firstname.lastname@example.org.