Duty to accommodate
If employers, service providers, and landlords are considering requiring vaccinations, they also need to consider that some people are not able to be vaccinated because of a disability, such as allergic reactions to vaccinations or immunosuppression. They will have a duty to accommodate those people to the point of undue hardship. They will also need to balance their accommodation obligations with other legal obligations. For example, will accommodating one employee place others at a real risk, especially those vulnerable to COVID-19 (such as seniors or individuals with certain disabilities).
Some people may not want to be vaccinated because they do not believe in vaccines. However, not all beliefs are protected under the Act in Alberta. Only religious beliefs that are sincerely held and connected to a faith must be accommodated in the areas protected under the Act, such as employment, services, or tenancy. As with accommodation of disabilities, employers, service providers, and landlords may also have to consider other legal obligations to all their employees, service recipients, and tenants.
Can I make a human rights complaint about vaccines?
The Commission may accept a complaint when someone has a disability or religious belief that they allege was not accommodated by their employer, service provider, or landlord. Early in the complaint process, a person making a human rights complaint on the ground of mental disability or physical disability will need to provide medical information to confirm they have a disability that prevents them from being vaccinated.
Someone who wants to make a complaint on the ground of religious beliefs will need to provide information to show their belief that they cannot be vaccinated is sincerely held and connected to their faith.
If a complaint is accepted, what happens next?
The party that the complaint is against (the Respondent) will have an opportunity to provide a response to an accepted complaint. They may provide information about what accommodations were offered and available. They will also be able to provide information explaining why they could not accommodate employees, service recipients, or tenants who are unable to be vaccinated, including why it would be an undue hardship to do so. It is important to note that hardships such as concerns about safety must be real and tangible, not just perceived.
Human rights complaints about medical tests
Some employers or service providers might decide to require medical testing such as taking a temperature or requiring employees to regularly submit to rapid COVID-19 testing. Medical testing to determine fitness to safely perform work or protect others may be permissible under the Act, if the testing is shown to be effective and necessary in circumstances such as a pandemic.
In any medical testing, employers, service providers, and landlords should seek only information from medical testing that is reasonably necessary to confirm whether employees or service recipients are fit to work or receive services, or whether they require accommodation. Information about pre-existing or other disabilities should be excluded. Employers, service providers, and landlords are not normally entitled to information about a diagnosis.
A positive COVID-19 test result must not lead to automatic negative consequences such as employee discipline or termination, complete denial of service, or eviction from housing. Employers, service providers, and landlords have a duty to accommodate people with COVID-19. For example, employers are required to accommodate the absence from work of individuals with COVID-19 and, where possible, service providers must consider alternate ways to provide their services, such as offering delivery.
Requests for confirmation of vaccination
Some employers, service providers, or landlords might be considering asking their employees, service recipients, or tenants whether they have been vaccinated, or requesting proof of vaccination.
On its own, a request for information about vaccinations is not contrary to the Act. Collection of information about employees, service recipients, or tenants is covered under privacy legislation. Questions about the collection and retention of information can be directed to the Office of the Information and Privacy Commission.
However, providing information that someone has not or cannot be vaccinated should not lead to discriminatory treatment of people who cannot be vaccinated because of a disability or religious belief. Employers, service providers, and landlords have an obligation to accommodate individuals who cannot be vaccinated for these reasons to the point of undue hardship.
Disclaimer: This information does not constitute legal advice. It is provided only for information purposes, and does not suggest what, if any, decision might be made by a Human Rights Tribunal in any specific complaint.
Find more information on COVID-19 measures at alberta.ca/coronavirus.