On Friday, right before Ontarians were entering the long weekend, the Chief Public Health Officer announced that Canada may be entering a 4th wave. The likelihood of a resurgence will largely depend on how many people are fully vaccinated. An estimated 89.7% of all new cases are occurring in eligible but unvaccinated people, even though the Prime Minister recently noted there are enough doses to vaccinate everyone in the country.
Some post-secondary institutions in Ontario are making vaccinations mandatory for all students and employees, with the province considering making vaccines mandatory for certain occupations. Half of all vaccinated Canadians indicate they are unlikely to spend social time with those who remain unvaccinated, which is already creating a significant social divide among family members and friends.
In some circumstances, people will still have to have interaction with those who choose not to get vaccinated, either with co-workers or members of the public that they have interface with as part of their jobs. Employers have a positive obligation to maintain a safe workplace, but that does not necessarily extend to preventing workers from interacting entirely with the unvaccinated, as public health guidelines still indicate that physical distancing and masks should generally be sufficient.
The anger and frustrations of potentially entering another lockdown that might be entirely unavoidable may very likely be directed to those who choose to not get the COVID-19 vaccine, especially since the World Health Organization (WHO) has identified vaccine hesitancy as a global health threat. While this might be tolerable and perhaps even a socially acceptable form of peer pressure in entirely social settings, it can take a different tone in the workplace.
Vaccination status is medical information that is protected in Ontario under the Personal Health Information Protection Act. While an employer may be obligated to collect this information for legitimate purposes, they cannot disclose the vaccination status of individual workers to others in the workplace without explicit consent.
Given the broad concern of a 4th wave, and initial delays and difficulties in obtaining vaccines, it’s not unlikely that many co-workers would themselves make these inquiries, without involvement or knowledge of the employer. However, in this context individuals who are vaccine hesitant may either provide misinformation, or free undue pressure to provide a response about their own personal and private medical information. These dynamics may also trigger an employer’s obligation to maintain a safe workplace, and ensure that individual workers are not pressured or bullied around their own private healthcare decisions.
The reasons for vaccine hesitancy in Canada are complex, and often include concerns about safety and efficacy. Some of these reasons may include protected grounds under the Human Rights Code, such as religion or creed. The Court’s 2-part test for protected belief in Syndicat Northcrest v. Amselem requires a connection or nexus with a religion, and a sincerity in that belief. There is no requirement that the belief be verified or validated by an authority in that religion,
43 The emphasis then is on personal choice of religious beliefs. In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make; see, e.g., Re Funk and Manitoba Labour Board (1976), 1976 CanLII 1098 (MB CA), 66 D.L.R. (3d) 35 (Man. C.A.), at pp. 37-38. In fact, this Court has indicated on several occasions that, if anything, a person must show “[s]incerity of belief” (Edwards Books, supra, at p. 735) and not that a particular belief is “valid”.
This test has been used previously in the context of human rights and vaccines.
In Ataellahi v. Lambton County (EMS), the Tribunal considered a claim on the basis of creed for a part-time paramedic who alleged discrimination through shift scheduling, discipline, and refusing work during the 2010-2011 influenza respiratory outbreaks. The EMS service had a mandatory influenza vaccination policy, which the Applicant believed was discriminatory.
The Tribunal confirmed, citing Huang v. 1233065 Ontario Inc. (No. 2) and Heintz v. Christian Horizons, that individual beliefs and practices that form a creed need not be based on any formal edicts of an established church or a particular denomination. However, in this case the Applicant was basing their objections on medical considerations rather than any religious beliefs, causing the Tribunal to conclude,
 In the absence of any religious beliefs and/or practices influencing his decision to not be immunized, the applicant cannot assert that he is being discriminated against on the basis of his creed.
A similar conclusion was reached recently by the British Columbia Human Rights Tribunal in The Worker v. The District Managers. The Applicant refused to wear a face mask when reporting for work, citing that it was his religious creed to refuse. The Tribunal dismissed this as the screening level, publishing it given the public interest. Unlike in Ataellahi, the Applicant here did make some reference to religious beliefs as follows,
“We are all made in the image of God, a big part of our image that we all identify with is our face. To cover-up our face arbitrarily dishonors God”. The Worker says it is his freedom of expression to show his face in the general public and his religious liberty to identify his face to others. He says the mask requirement infringes on his “God given ability to breath”. The Worker does not believe that mask wearing is effective. He says, “God makes truth of high importance that I must follow ethically and morally”, “forced mask wearing does not help protect anyone from viruses”, and, therefore, he cannot “live in that lie”.
The Tribunal reviewed the foregoing and concluded,
 These facts, if proven, could not establish that the Worker’s objection to wearing a mask is “experientially religious in nature”. He has not pointed to any facts that could support a finding that wearing a mask is objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”: Amselem at para. 43. Rather, his objection to wearing a mask is his opinion that doing so is “arbitrary” because it does not stop the transmission of COVID-19. As set out in The Customer, that view is not protected under the Code:
The Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic. … (para. 14)
The Worker’s opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion. While the Worker states his belief that it dishonours God to cover his face absent a basis for doing so, the Workers’ complaints, in essence, are about his disagreement with the reasons for the mask-wearing requirement set out in the Orders.
Where a worker cites inconclusive medical evidence or safety concerns around COVID-19 vaccines, without any accompanying connection or nexus to creed, vaccine hesitancy may also not be a protected ground under the Code. These concerns about effectiveness or safety appears to be the primary objection or reservation for most Canadians who are refusing to get vaccinated.
That does not mean that those who are vaccine hesitant should not still be treated with dignity and respect, especially in the workplace. Vaccine hesitancy has been described as existing on a continuum.
Communication strategies for addressing hesitancy can be framed positively and in empowering ways, and without employing judgment or labels. They can should come directly from the employer, without signaling anyone out or identifying those who are not vaccinated, and in some circumstances may have to discourage co-workers from engaging in debates on COVID-19 vaccines.
There are also important equity considerations in addressing vaccine hesitancy. The Government of Canada notes,
…COVID-19 vaccine hesitancy among Indigenous peoples and Black Canadians must be considered in the context of the history and ongoing experiences of colonialism, racism and discrimination against these communities, including within government, public health and health care institutions. Colonial structures have directly contributed to Indigenous Peoples having reduced access to adequate health care, healthy food and clean water, while also experiencing much greater levels of overcrowded housing, homelessness and incarceration. These factors have made them more vulnerable to illness, including COVID-19. Moreover, trust in medical institutions has been eroded by a history of medical experimentation on these population groups, as well as the use of racially segregated medical facilities during the postwar years. Experiences of racism and discrimination can erode individuals and communities’ trust in these institutions, which in turn can erode trust in vaccines.
These perceptions of governments, institutions, and political leadership are also widely shared among historically marginalized populations generally, including low-income populations. Many lawyers have interfaces and connections with these populations, and given the trusting nature of the solicitor-client relationship, may be able to facilitate greater interest in obtaining a vaccine.
While the COVID-19 vaccine remains the best chance of avoiding another wave, the true test of the pandemic is how we continue to treat each other and respect the rules and values that hold us together as a society. The commitment to those objectives is tested the most when confronted directly with those who are most frightened or confused about these unique circumstances we find ourselves in, and how we attempt to employ compassion in navigating that relationship.