The NWT Human Rights Commission has received inquiries regarding the human rights implications around mandatory vaccine and proof-of-vaccination policies. The NWT Human Rights Commission offers the following general information and guidance to assist members of the public, and all employers, housing and service providers who may plan to implement a mandatory vaccine or proof-of-vaccination policy.
The Duty to Accommodate under the NWT Human Rights Act
The COVID-19 vaccine is a vital tool in ensuring the health and safety of our communities. The NWT Human Rights Commission recognises that, in limited circumstances, some people cannot be vaccinated for reasons related to a ground protected by the NWT Human Rights Act (the Act). The Act protects individuals from unreasonable discrimination in employment, tenancy, and public services when that discrimination is related to a protected characteristic. The Act protects against discrimination based on 22 characteristics, including disability, age, race, and creed.
Ultimately, the Act prohibits unreasonable discrimination, which means that discrimination may be legitimate and necessary in some situations. Requiring someone to be vaccinated and/or provide proof-of-vaccination to access employment, public services, or housing, may result in discrimination that is allowed for public health reasons.
If the duty to accommodate is triggered under the Act, an employer is required to do so to the point of undue hardship. Possible accommodations might include continued use of masks, maintaining physical distancing, remote work, modified shifts or possible reassignment and/or regular testing etc.
Employers, service providers, and property owners may also have to balance accommodation obligations with their other legal obligations to co-workers, other tenants and service recipients. For instance, if the requested accommodation creates health and safety risks to others, is inordinately expensive or does not allow a person to do their job properly, accommodation may not be required. In that case, the person requesting accommodation may face the choice of complying with the policy, being placed on unpaid leave or terminated, or being denied access to a service.
It is important to note that disability related accommodations need a medical note or information that confirms there is a substantiated medical reason the person cannot get vaccinated and how long this exemption might apply (for example, a serious allergy to the vaccine).
It is equally important to remember a person who chooses not to get vaccinated because of a personal choice or singular belief, is not protected under the NWT Human Rights Act, and does not have the right under the Act to be accommodated.
The NWT Human Rights Commission cannot take complaints from people who want to challenge the validity of the vaccine mandate and/or passport or feel that their rights under the Charter of Rights and Freedoms have been violated. To discuss the role of the Charter with respect to federal or territorial government actions, we encourage you to reach out to a private lawyer.
Principles to consider when developing mandatory vaccine and passport policies
Vaccine mandates and/or proof-of-vaccination policies, in some cases, are reasonable and justifiable. It is important to remember such a policy should be:
- Evidence Based-
- Proportional to the health and safety risks they seek to address.
- Evidence of the risk of the transmission of COVID-19 in a specific setting is required to justify policies that restrict individual rights for the purpose of protecting collective public health or workplace safety.
- Based on scientific evidence and the health and safety orders and recommendations of the Chief Public Health Officer. They must align with up-to-date public health guidance and reflect current medical and epidemiological understandings of the specific risks the policy aims to address.
- Necessary – Should achieve an outcome that no other less intrusive measures could achieve. If there is evidence to support that less intrusive measures do not work well enough to prevent COVID-19 transmission in a given setting, mandatory vaccination policies may be implemented as long as the employer or service provider also take into account their duty to accommodate for protected grounds such as disability under the Act.
- Time-limited and/or reviewed regularly– Such policies may only be justified during a pandemic. They should regularly be reviewed and updated to match the most current conditions of the COVID-19 pandemic and to reflect up-to-date public health guidance.
- Ensure privacy of personal medical information – Appropriate safeguards must be in place to ensure the information is stored securely and only held for as long as needed in accordance with applicable privacy law. See the Joint Statement by Federal, Provincial and Territorial Privacy Commissioners on Privacy and COVID-19 Passports for guidance on this matter: https://priv.gc.ca/en/opc-news/speeches/2021/s-d_20210519
If you believe you are being discriminated against on the basis of a prohibited ground under the Act or you are developing a vaccine related policy and would like to discuss possible human rights implications, please call our office at 867-669-5575 or email us at info@nwthumanrights.ca to speak to a Human Rights Officer or to make an appointment.
*Many thanks to our Human Rights Commission colleagues across the country whose work has informed this guidance.
Disclaimer: The preceding statement does not constitute legal advice. It is provided only for information purposes, and does not imply whether the Human Rights Commission will accept or decide to refer any specific complaint to the NWT Human Rights Adjudication Panel. Decisions about whether human rights violations have taken place are made by the NWT Human Rights Adjudication Panel, which is entirely independent of the NWT Human Rights Commission.
This post is also available in: French