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SO YOU THINK YOU’RE EXEMPT? DISCUSSING ONTARIO’S MEDICAL AND RELIGIOUS EXEMPTIONS FROM COVID-19 VACCINATION

Ontario's COVID-19 vaccine passport system is sparking a growing conversation on what counts as a valid medical or religious exemption.

Individuals who would like to eat indoors at a restaurant or go to a gym, nightclub or movie, will be required to show proof of vaccination, or an exemption, as of September 22, 2021.

On September 14, 2021, Ontario’s Ministry of Health released a guidance document entitled “Medical Exemptions to COVID-19 Vaccination”, to assist physicians and nurse practitioners in evaluating contraindications or precautions to COVID-19 vaccination that may warrant a medical exemption. However, the government has yet to make mention of other exemptions, such as the hotly debated religious exemptions.

Ontario’s Human Rights Code (the “Code”) explicitly provides that every person has the right to equal treatment in services and employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. This means that someone with a valid exemption under one of these grounds may not be required to comply with COVID-19 vaccine mandates in certain circumstances.

However, these rights come with limitations, which will be reviewed further in this article. Specifically, we will discuss what we have seen as the two (2) most common exemption requests from vaccination: medical and religious.

Two (2) Primary Medical Exemptions

In the aforementioned guidance document provided by the Ministry, Ontario’s medical regulator has asked doctors to be judicious when handing out exemptions. For now, we are aware that there are two (2) main justifications allowing an individual to receive a medical exemption from the COVID-19 vaccine: allergies or adverse reactions.

Allergies

The guidance document’s reference to allergies does not simply refer to one having allergies in general and further, might not even be applicable to someone that is allergic to specific ingredients in the COVID-19 vaccines.

According to Dr. Elizabeth Muggah, a family doctor and the President of the Ontario College of Family Physicians, for an allergy to qualify as a medical exemption it would need to be: a potentially life-threatening anaphylactic allergy, one that would cause trouble breathing and would be similar to a severe allergy to bees or nuts.

Adverse Reactions

This applies to someone who had an adverse reaction to the first dose of the COVID-19 vaccine. If an individual who has received one dose of an approved vaccine develops inflammation in their heart or its lining, myocarditis or pericarditis respectively, they may be eligible for an exemption from further vaccination.

Dr. Muggah and Dr. Adam Kassam, President of the Ontario Medical Association, have been clear that being immunocompromised is not a reason for a medical exemption. Rather, it should act as further motivation to get vaccinated, as immunocompromised individuals are at an elevated risk of contracting COVID-19 and developing a serious infection.

For now, it is assumed that most physicians will be fairly strict when it comes to handing out medical exemptions from vaccination. The two exemptions listed above may not be the only ones available, but they are the most common for employers to keep in mind when seeking to implement vaccine policies, as well as for service providers who are required to abide by the new vaccine passport system.

Religious Exemptions

While valid religious exemptions have been accepted in Ontario as a means of avoiding vaccination, it is quite uncommon, and there no available decisions at this time showing a valid religious exemption from the COVID-19 vaccine.

Ontario Human Rights Commission’s Position

The Ontario Human Rights Commission (“OHRC”) has provided some guidance on this issue in its COVID-19 and Ontario’s Human Rights Code – Questions and Answers.

The OHRC’s position is that a singular belief or personal preference against vaccinations does not appear to be protected on the ground of creed under the Code.

Reviewing Religious Exemptions

While most religions have no prohibition against vaccination, some have considerations, concerns or restrictions regarding vaccination in general, particular reasons for vaccination or specific vaccine ingredients.

Some Christian denominations do have a theological objection to vaccination including:

• Dutch Reformed Congregations: This denomination has a tradition of declining immunizations. Some members decline vaccination on the basis that it interferes with divine providence. However, others within the faith accept immunization as a gift from God to be used with gratitude.
• Christian Science Perspective: One of the basic teachings of this denomination is that disease can be cured or prevented by focused prayer and members will often request exemptions when available. However, there are not strict rules against vaccination and members can receive required vaccinations.
• Faith healing denominations: These denominations believe that ailments can be cured by religious belief and prayer, rather than by medical intervention.

To further clarify some theological objections to vaccination, Pope Francis confirmed in August 2021, that it was morally acceptable for Catholics to receive COVID-19 vaccines, including those based on research that used cells derived from aborted fetuses.

Managing Religious Exemption Requests

While many people claim to have a religious exemption to vaccination, those requests may not be valid in the context of Ontario’s Human Rights laws. For one, these rights may be limited in certain contexts; for example if vaccination is a bona fide occupational requirement for employment. Second, people receiving exemption letters from a member of their church are not guaranteed to have a valid religious exemption to COVID-19 vaccines. One’s religious beliefs must be based on an established religious practice that prevents one from receiving the vaccination in question. In this regard, religious exemptions cannot be a personal belief – it must be grounded in established religious practices. This was confirmed by British Columbia’s Office of the Human Rights Commissioner when the B.C. government announced their new B.C. Vaccine Card.  The B.C. Commissioner made clear that a personal desire not to get vaccinated is not protected by the British Columbia Human Rights Code.

Accommodating Vaccine Exemptions

The OHRC released guidance on September 22, 2021 outlining, among other things, possible ways in which individuals with vaccine exemptions can be accommodated. Consistent with the duty to accommodate, the provincial proof of vaccine regime says that people who are unable to receive the vaccine must provide a written document, supplied by a physician or by a registered nurse extended class or nurse practitioner stating they are exempt for a medical reason from being fully vaccinated and how long this would apply.

The OHRC takes the position that organizations with a proven need for COVID-related health and safety requirements might also put COVID testing in place as an alternative to mandatory vaccinations or as an option for accommodating people who are unable to receive a vaccine for medical reasons. It is the OHRC’s position that organizations should cover the costs of COVID testing as part of the duty to accommodate.

In this new guidance the OHRC reiterated British Columbia’s viewpoint with respect to personal beliefs, stating:

“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.”

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.

Bottom Line

Individuals seeking a medical exemption or employers receiving an exemption request from an employee from the COVID-19 vaccine, should be aware of the two predominant justifications: severe anaphylaxis to vaccine ingredients and past reactions to COVID-19 vaccines.

Whereas, individuals seeking a religious exemption in Ontario will likely have a tough hill to climb. The OHRC’s current position is that a singular belief or personal preference against vaccinations does not appear to be protected on the ground of creed under the Code. Further, there are very few religions that strictly ban the use of vaccines among their congregation. However, employers and businesses should explore all available accommodation options if there is such a request.

This is undoubtedly just the beginning of discussions on human rights exemptions from vaccination. Note that, while the OHRC’s position and statement do inform the discussion, they are not legal rulings.  In that regard, the (inevitable) first cases to be tested in Ontario’s Courts and Tribunals are sure to be highly anticipated and severely scrutinized.

The lawyers at CCPartners will continue to monitor legislative updates and new case law to keep readers fully informed of the issues surrounding exemptions from vaccination. Contact one of our experienced lawyers for advice on dealing with these, and other COVID-19 issues, at your workplace.